Delhi High Court - Orders
Bharat Buildtech Pvt. Ltd vs Rajesh Sachdeva & Anr on 27 January, 2023
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2461/2007
BHARAT BUILDTECH PVT. LTD ..... Plaintiff
Through: Ms. Vibha Mahajan Seth with Ms.
Divyanshi Anand, Advocates.
versus
RAJESH SACHDEVA & ANR ..... Defendants
Through: Mr. Ravikesh K. Sinha, Advocate.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 27.01.2023 I.A. 1658/2023
1. Allowed, subject to all just exceptions.
2. The application is accordingly disposed of.
I.A. 1657/202131. An application under Section 5 of the Limitation Act read with Section 151 of CPC for condonation of delay in filing the review petition.
2. The delay of 35 days in filing the review petition is hereby condoned.
3. The application is disposed of.
Review Petition 33/20231. Review petition under Section 114 of CPC read with Order 47 of CPC has been filed on behalf of the petitioner for review of the Order dated 09.11.2022 dismissing I.A NO. 15077/2019 filed by the petitioner in C.S.(OS) No. 2461/2007 for impleadment of Mr. Raaj Hiremath as a party.
Signature Not VerifiedDigitally Signed CS(OS)2461/2007 Page 1 By:PRIYANKA ANEJA Signing Date:31.01.2023 12:08:32
2. It is submitted in the application that the plaintiff had filed a suit for Specific Performance of Agreement to Sell in respect of suit property bearing no. D-8/1, Okhla Industrial Area, Phase-1, New Delhi for a total sale consideration of Rs. 3,20,00,000/-. During the pendency of the suit, the plaintiff/petitioner decided to bring a quietus to the entire dispute provided a sum of Rs. 10,00,000/- as paid to defendant no.2/respondent no. 2, M/s. Ushakkal Communications Ltd, was returned with suitable interest from the date of payment till the date of refund. Accordingly, Mr. Raaj Hiremath, Director of M/s. Ushakkal Communications Ltd agreed to return the sum of Rs. 10 lacs with interest on or before 02.11.2016.
3. The suit was accordingly disposed of in terms of Undertaking/ statement given by Mr. Raaj Hiremath, director of respondent no.2 and also in his individual capacity.
4. Since Mr. Raaj Hiremath, Director of Respondent no.2 made payment of Rs. 50,000/- only and failed to comply with the Undertaking, the petitioner was compelled to file Contempt Petition, Cont. Case (C) No. 316/2017 against Mr. Raaj Hiremath for contempt. However, the contempt petition was disposed of vide Order dated 25.04.2017 with the directions to the petitioner to take steps for execution of the Order dated 02.09.2016.
5. A decree dated 02.09.2016 was drawn and prepared by the Registry in terms of the Order dated 02.09.2016 and Execution Petition No. 75/2019 was filed by the plaintiff/petitioner on 02.09.2019. However, the learned Single Judge observed that there was no direction in the Order dated 02.09.2016 for drawing up of a decree. Therefore, the plaintiff had to file an I.A. no. 14395/2019 in the main suit seeking directions of this Court for drawing up of a decree in terms of Order dated 02.09.2016..
Signature Not VerifiedDigitally Signed CS(OS)2461/2007 Page 2 By:PRIYANKA ANEJA Signing Date:31.01.2023 12:08:32
6. However, while hearing I.A No. 14395/2019 this Court observed that Mr. Raaj Hiremath, i.e. Respondent no.3 on whose undertaking the civil suit has been disposed of, was not a party and hence the question of drawing any decree in terms of the Order dated 02.09.2016 did not arise.
7. Therefore, I.A. No. 15077/2019 was filed by the plaintiff for impleadment of Mr. Raaj Hiremath as a party to the suit who had given an undertaking to refund Rs. 10,00,000/- along with interest @ 9% per annum w.e.f 26.08.2007 till the date of payment on or before 02.11.2016, by way of Demand Draft.
8. It was contented in the application that Mr. Raaj Hiremath was a necessary and proper party, since in his absence, no decree could be passed by this Court. Mr. Raaj Hiremath appeared in response to the notice of the application under Order 1 Rule 10 CPC and on various subsequent dates. However, he failed to appear before the Court in compliance of Order dated 30.01.2020 and subsequent Orders. A sum of Rs. 3,00,000/- has been received by the petitioner on behalf of Mr. Raaj Hiremath thereafter.
9. This Court vide its order dated 09.11.2022 directed the drawing up a decree in terms of Order dated 02.09.2016. However, it dismissed I.A No. 15077/2019 for impleadment of Mr. Raaj Hiremath by observing that he being the Director of Respondent no.2, was not required to be impleaded independently as a defendant.
10. It is claimed that the Undertaking for refund of money was given by Mr. Raaj Hiremath in his individual capacity and the suit had been disposed of accordingly on 02.09.2016.
11. The present review petition has been filed on the ground that the impugned order has been made in ignorance of true facts and circumstances.
Signature Not VerifiedDigitally Signed CS(OS)2461/2007 Page 3 By:PRIYANKA ANEJA Signing Date:31.01.2023 12:08:32 The Civil suit was disposed of on 02.09.2016 on the individual undertaking of Mr. Raaj Hiremath as well in his capacity as Director. It is asserted that the Undertaking was given by Mr. Raaj Hiremath in his personal capacity and therefore, he was required to be impleaded as a party for drawing up a decree in terms of Order dated 02.09.2016.
12. The impugned order dated 09.11.2022 be reviewed and application under Order 1 Rule 10 CPC be allowed to implead Mr. Raaj Hiremath as a party.
13. Submissions heard.
14. The record shows that the suit was filed by the plaintiff against defendant no.1, Mr. Rajesh Sachdeva and defendant no.2, M/s. Ushakkal Communications Ltd for specific performance of Agreement to Sell and for permanent and mandatory injunction.
15. In paragraph 5 of Order dated 02.09.2016, vide which the suit was also disposed of, it was specifically recorded that the undertaking of Mr. Raaj Hiremath, Director of M/s. Ushakkal Communications Ltd who was present in Court, to pay the sum of Rs. 10,00,000/- along with interest @ 10 p.a, was accepted.
16. The Order dated 02.09.2016 was explicit as it clearly stated that the Undertaking was given by Mr. Raaj Hiremath, Director of defendant no.2. So are the observations in the impugned Order dated 09.11.2022 whereby the application on behalf of the plaintiff for impleadment of Mr. Raaj Hiremath in his individual capacity was dismissed.
17. It may also be noted that the suit stood disposed of on 02.09.2016 and there was nothing which survived in the suit for impleadment of any party. Further, it has been claimed that presence of Mr. Raaj Hiremath is required Signature Not Verified Digitally Signed CS(OS)2461/2007 Page 4 By:PRIYANKA ANEJA Signing Date:31.01.2023 12:08:32 for execution of decree. It was submitted that the decree could not have been drawn in the absence of Mr. Raaj Hiremath being impleaded in individual capacity.
18. Interestingly, on the same date i.e., 09.11.2022 the petitioner's another I.A. No. 14395/2019 for directions to draw the decree, was allowed and Decree was directed to be drawn. This order has not been challenged by the petitioner. Once the decree is directed to be drawn, there cannot be any directions for impleadment as the suit stands decided. There is neither any error apparent on face of record or any other ground for review of the Order dated 09.11.2022.
19. The review application is without merit and is hereby dismissed.
NEENA BANSAL KRISHNA, J
JANUARY 27, 2023/PA
Signature Not Verified
Digitally Signed CS(OS)2461/2007 Page 5
By:PRIYANKA ANEJA
Signing Date:31.01.2023
12:08:32