Final Order 1

Order Details: Notice of Motion
Pdf Text: NM1161/19 Sum.Suit 1091/18 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1161 OF 2019
IN
SUMMARY SUIT NO. 1091 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR NO.: MHCC010030292019)
Mr.Simon Duke, ...Applicant/Defendant No.2
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.2 requested to struck off his
name from the plaint.
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2. The plaintiff resisted the Notice of Motion.
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.2 is
necessary/proper party ?
Proper party.
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.2
was not the party to the contract. No relief has been sought against
defendant No.2. 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.2 is the representative 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.2 is either necessary
or proper party. If he is, his name will be continued in the plaint. If he is
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not, then his name will have to be struck off from the plaint by virtue of
Order1 Rule 10 of Code Of Civil Procedure.
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.2 is the representative 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.2 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.2. Thus, defendant No.2
is not necessary party. However, the documents with plaint reveal that
in the correspondence between the plaintiff and defendant No.1,
defendant No.2 has always represented himself as for and on behalf of
defendant No.1. The whole correspondence on behalf of defendant No.1
is made by defendant No.2 and the correspondence to defendant No.1 is
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addressed in the name of the defendant No.2. The documents also
reveal that defendant No.2 has played a major role in the subject
contract. Having considered overall record and facts and circumstances,
although defendant No.2 is not a necessary party, he is a proper party
as his presence is necessary to decide the suit completely and
effectually. Hence, point no.1 is answered as that defendant No.2 is a
proper party. Resultantly, his name need not be struck off.
9. The Ld advocate for defendant relied on 'Mumbai
International Airport V/s Regency Convention Centre',
MANU/SC/0427/2010 and 'TBWA Anthem V/s Madhukar
Kamath',MANU/DE/0671/2001. This court has carefully gone through
the decisions in the given cases. In the case of “Mumbai International
Airport ' the Hon'ble Supreme Court observed “A necessary party is a
person who ought to have been joined as a party and in whose absence
no effective decree could be passed at all by the court. A proper party is
a party who, though not a necessary party, is a person whose presence
would enable the court to completely, effectively and adequately
adjudicate upon all matters in disputes in the suit. If a person is not
found to be proper or necessary party, the court has no jurisdiction to
implead him against the wishes of the plaintiff.” In the case of 'TBWA'
the Hon'ble Delhi High Court held that a person who is not party to the
contract cannot be impleded as defendant merely on the allegation that
he had violated business ethics. However, in the case in hand this court
has noted that defendant No.2 is a proper party. In these facts, with
respect, the decisions as relied on are not applicable to the case in hand.
10. In view of this discussion the Notice of Motion is liable to
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be rejected. Hence, in answer to point no.2 order as follows is passed:
ORDER
The Notice of Motion 1161 of 2019 is rejected.
(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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