Final Order 2

Order Details: Chamber summons
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MHCC010039322019
IN THE COURT OF JUDGE CITY CIVIL AT GREATER MUMBAI
CHAMBER SUMMONS NO.789 OF 2019
IN
SUMMARY SUIT NO. 7072 OF 2004
Indian Oil Corporation Limited ...Plaintiff
VERSUS
Dabhol Power Company ...Defendants
AND
1. Industrial Development Bank of India
Limited(Mortgage Trustee) & Anr. ...Respondents
Appearance :
Ld. advocate Mr.Shrikant Seegarla for plaintiff.
Ld. advocate Mr. Rohan Sathaye for org. defendant.
Ld. advocate Mr. Akhar Rizvi for Respondent No.1.
Ld. advocate Mr.Vishal Talsania for Respondent No.2.
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 07-11-2022.
ORDER
By way of present Chamber Summons, plaintiffs seek to
add ‘Industrial Development Bank of India Limited’ as well as ‘Ratnagiri
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2 Order in CHS No.789-19 in
SU No.7072-04
Gas & Power Private Limited’ (proposed defendants) as party
defendants to the suit.
2. The Chamber Summons is strongly objected by the
proposed defendants as well as the original defendant, Dabhol Power
Company by filing their respective reply on record.
3. Heard Ld. advocate Mr. S.M. Seegarla for the plaintiff. He
submits that present suit is filed for recovery of certain amount owing to
certain contractual relations i.e. supply of fuel Naphtha to the Dabhol
Power Company’s project. He further submits that during the pendency
of the suit, he came to know that the proposed defendant No.1 i.e. IDBI
Bank has purchased certain asset of the Dabhol Power Company. He
further submits that there is likelihood that there may be excess amount
lying with the IDBI Bank from which plaintiff’s claim might be satisfied
and therefore as an abundant precaution, he needs to make IDBI Bank
as party defendant in the present suit.
4. Ld. advocate for plaintiff further submits that the proposed
defendant No.2 is also party to the Consent Terms, placed on record at
Exh.B and Exh.C, filed before the Hon’ble Bombay High Court in the
Suit No.1116/2005, and as such is liable to satisfy the unpaid amount
of Dabhol Power Company.
5. Ld. advocate for the plaintiff further submits that the
proposed defendant No.2 has also purchased the property of original
defendants and they may have to seek recovery against the said
proposed defendant No.2, if any excess amount of Dabhol Power
Company is found to with it. He also invites attention of this Court on
the order passed by the Hon’ble Bombay High Court in the Notice of
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3 Order in CHS No.789-19 in
SU No.7072-04
Motion No.2666/05 in Suit No.1116/05 and submits that though the
plaintiff was not party to the said proceeding, but in view of the liberty
granted by the Hon’ble High Court in the said order, he could also seek
recovery against the proposed defendants.
6. Ld. advocate for the plaintiff further submits that if plaintiff
do not add proposed defendants as party defendants, at this stage, the
suit may suffer from the defect of non joinder of necessary party.
Defendants has already taken an objection of non joinder in that regard.
He further submits that there would not be any prejudice to the
defendants, if this chamber summons is allowed. He ultimately prays to
allow the chamber summons.
7. Heard Ld. advocate Mr. Rizvi for proposed defendant No.1.
He submits that he has not purchased the asset of Dabhol. On the
contrary, he has lent certain money to the Dabhol Project and the
property of Dabhol Project is in fact mortgaged with defendant No.1.
Even that mortgage property falls short to satisfy the claim of IDBI
against the defendant Dabhol Power Company. Hence, there is no
question of having any excess amount of Dabhol Project with the
proposed defendant No.1.
8. Ld. advocate Mr. Talsania for proposed defendant No.2
submits that he has an independent transaction with the Dabhol Project.
He has purchased the property of Dabhol Project and as such there is no
question of incurring any liability of any creditor of Dabhol Project. He
further submits that there is no privity of contract between proposed
defendant No.2 and plaintiff and hence proposed defendant No.2 is
neither a proper nor necessary party to the present suit.
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4 Order in CHS No.789-19 in
SU No.7072-04
9. Ld. advocate Mr.Sathaye for original defendant too strongly
objects the Chamber Summons. He submits that Chamber summons is
misconceived and be dismissed. He also submits that the suit is now at
the stage of hearing, therefore, at this stage, Chamber Summons for
adding party cannot be considered.
10. Having heard respective learned counsels for the parties, it
is admitted position that the present suit is filed for recovery of certain
amount against the defendant for supply of goods i.e. Naptha a
petroleum product. It is not in dispute that defendant Dabhol Power
Company still exists as a legal entity and is well represented before this
Court.
11. Plaintiff with the present Chamber Summons seek addition
of proposed defendants in the present suit merely as an abundant
precaution with an assumption that tomorrow he may get decree
against the defendants and at that time if defendant Dabhol Power
Company owns no assets to honour any such decree, plaintiff may not
get fruits of the decree. With this assumption plaintiff seeks addition of
the proposed defendants. However plaintiff failed to point out that the
proposed defendants are obliged to satisfy the decree passed against the
defendant Dabhol Power Company. Neither there is any such agreement
or undertaking which requires the proposed defendants to incur any
such liability of Dabhol Power Company. So also the order of Hon’ble
High Court in aforesaid proceedings on original side, to hold proposed
defendants responsible to satisfy the liability of Dabhol Power Company.
As such proposed defendants have no nexus with the present or future
liabilities of the Dabhol Power Company.
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5 Order in CHS No.789-19 in
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12. At present plaintiff has no claim against the proposed
defendants. It needs to be noted that Rule 3 of Order I of Code of Civil
procedure, 1908 (CPC) deals with aspect of who may be joined as
defendants. Rule-3 reads as under-
“3. Who may be joined as defendants- All persons may be
joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged to
exist against such persons, whether jointly, severally or in the
alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.”
13. I do not find any right with the plaintiff to claim relief
against the proposed defendants. As such they cannot be added as party
defendant in present suit. Further more sub rule (2) of rule 10 of
Order I empowers the court to add proper or necessary party to a suit.
However in matter in hand I do not find any reason to exercise this
power. Proposed defendants are neither proper nor necessary party to
the present suit.
14. In the matter in hand, it is admitted position that there is
no privity of contract between the proposed defendants and plaintiff.
So also there is no documents placed on record to show that at any
point of time, the proposed defendants have agreed to incur liability of
the defendant or to discharge the defendant’s liability out of the asset
which they hold today. As such, I find no nexus between the claim
raised by the plaintiff in present suit and proposed defendants. In other
words, so called abundant precaution of the plaintiff is completely
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6 Order in CHS No.789-19 in
SU No.7072-04
premature and too distant to consider. Both the proposed defendants
are neither proper nor necessary party to the present proceeding. Hence
amendment sought cannot be allowed. Hence, I find that the present
Chamber Summons be misconceived and deserves to be rejected.
Hence, the order.
ORDER
Chamber Summons No.789/2019 stands rejected with cost and
disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 07-11-2022. Court Room No.61
Dictated on : 07-11-2022
Transcribed on : 09-11-2022
Signed on : 14-11-2022
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7 Order in CHS No.789-19 in
SU No.7072-04
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14-11-2022 at 5.45p.m. Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07-11-2022
JUDGMENT/ORDER signed by P. O. on 14-11-2022
JUDGMENT/ORDER uploaded on 14-11-2022
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