Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1153/2019 SUM.SUIT 1091/18 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1153 OF 2019
IN
SUMMARY SUIT NO. 1091 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR NO.: MHCC010030022019)
Mr.Gajendra Harekchand Golcha, ...Applicant/Defendant No.3
IN THE MATTER BETWEEN
Value Freight Mumbai Pvt.Ltd. ...Plaintiff
Versus
Transglobal Projects Middle East(FZE),
& Ors. …Defendants
Appearances:
Advocate Mr.Amit Saple h/f. K.P.Anilkumar for Plaintiff.
Advocate Mr.Nihal Singh for the Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 14TH JANUARY 2020
J U D G M E N T
1. By this Notice of Motion under Order1 Rule10 of Code of Civil
Procedure, the applicant/defendant No.3 requested to struck off his
name from the plaint.
2. The plaintiff resisted the Notice of Motion.
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3. Heard Ld Advocates on behalf of both the parties. Considering the
material on record and submissions made on behalf of the parties,
points arise for determination alongwith my findings thereon for the
reasons recorded are as under,
POINTS FINDINGS
1. Whether defendant No.3 is
necessary/proper party ?
Negative
2. What order? As per final order.
Reasons
As to Points No.1 and 2:
4. The Ld Advocate on behalf of the defendant argued that the
contract was between the plaintiff and defendant No.1. Defendant No.3
was not the party to the contract. No relief has been sought against
defendant No.3. Therefore, he is neither necessary nor proper party. On
these contentions Ld Advocate requested to allow the Notice of Motion.
5. On the other hand Ld Advocate on behalf of the plaintiff argued
that defendant No.3 is the Constituted Attorney of the plaintiff.
Therefore, he is necessary party. Ld Advocate on behalf of the plaintiff
requested to reject the Notice of Motion.
6. The question posed is whether defendant No.3 is either necessary
or proper party. If he is, his name will be continued in the plaint. If he is
not, then his name will have to be struck off from the plaint by virtue of
Order1 Rule 10 of Code Of Civil Procedure.
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7. In brief the case of the plaintiff is that it is a private limited
company registered under the companies Act. Defendant No.1 is also a
company incorporated in Dubai, UAE and has office and business in
India. Defendant No.3 is the constituted attorney of defendant No.1.
The plaintiff and defendant No.1 vide Emails entered into a contract.
The plaintiff was to transport transformers and accessories from
Vadodara to Nouak Chott Port and Dakar Port for certain consideration
to be paid by defendant No.1. The plaintiff accordingly executed his
part by transporting the transformers. The plaintiff raised five invoices
of total amount of US $ 65680.89/ in the name of defendant No.1.
However, defendant No.1 failed to pay the said amount. Therefore,
calculating the interest at the rate of 18% p.a., the plaintiff by present
suit claimed decree for recovery of Rs.42,33,166/ (US $ 66764/).
8. Worth to note that in the prayer clause the plaintiff referred the
defendant in singular as 'The defendant'. There is no reference of the
defendants by mentioning as 'Defendants No.1 to 4'. There is no
mention of the term 'joint and several liability' in the prayer clause nor
in the body of the plaint making defendant No.3 jointly and severally
liable with defendant No.1. It is clear that the relief claimed is only
against defendant No.1 and not defendant No.3. Thus, defendant No.3
is not necessary party.
9. The whole plaint does not mention as to how defendant No.3 is
liable. The only averment in the plaint is that defendant No.3 is
constituted attorney of defendant No.1. However, that cannot be a
ground to join defendant No.3 as a separate party to the suit, though
constituted attorney may be described, only in the description of
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principal defendant, as representing the principal defendant.
Admittedly defendant No.1 is a company. As such it is an artificial legal
person and have legal rights and liabilities. It can sue and be sued in its
own name. Therefore, defendant No.3, being neither necessary nor
proper party, ought not to have been separately joined in the suit.
Resultantly, defendant No.3 not being necessary or proper party his
name deserves to be struck off.
10. The Ld Advocate on behalf of the plaintiff relied on 'Clarinda
D'Souza V/s McCann Erickson, 2003(2) Mh.L.J. 373'. I have carefully
gone through the decision in the given case. The Hon'ble Bombay High
Court held that while considering application for striking out the name
of a defendant on the ground that plaint discloses no cause of action
against him, the court ought to act with great circumspection and even
greater restraint. Under Order 7 Rule 11(a) power of court to reject
plaint is limited to cases where it does not disclose cause of action,
language of Order 1 Rule 10 does not expressly contain any such
limitation. It is also held that the power to strike out name of the
defendant on the ground that the plaint has no cause of action against
him, is not available within the scope of Order 1 Rule 10(2) of CPC.
However, in the case in hand, this court has not expressed observations
regarding cause of action against defendant No.3. The aspects
considered by this court are whether defendant No.3 is either necessary
or proper party and whether he has been improperly joined. Therefore,
the decision in the given case is not beneficial to the plaintiff.
11. As already noted, defendant No.3 is neither necessary nor
proper party. He has been improperly joined. In this background, point
No.1 is answered in the Negative and in answer to Point No.2 order as
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follows is passed:
ORDER
1. The Notice of Motion No.1153 of 2019 is allowed as under.
2. Name of defendant No.3 be struck off from the plaint.
3. The Notice of Motion No.1153 of 2019 is disposed accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 14/01/2020 City Civil Court, Gr. Mumbai
Dictated on : 14/01/2020
Transcribed on : 16/01/2020
Signed on : 16/01/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/01/2020 at 5.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 14/01/2020
Judgment/Order signed by P.O. on 16/01/2020
Judgment/Order uploaded on 20/01/2020
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