Calcutta High Court
Quippo Construction Equipment Ltd vs Hindustan Steel Works Construction Ltd on 15 May, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
ORDER SHEET
GA 520 of 2017
With
CS 40 of 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
QUIPPO CONSTRUCTION EQUIPMENT LTD.
Versus
HINDUSTAN STEEL WORKS CONSTRUCTION LTD.
BEFORE:
The Hon'ble JUSTICE SAHIDULLAH MUNSHI
Date : 15th May, 2017.
Appearance Mr. Suman Dutta, Adv.
Mr. Priyankar Saha, Adv.
Ms. Ankita Upadhyay, Adv.
For the plaintiff Mr. Rishad Medora, Adv.
Mr. Arijit Law, Adv.
For the petitioner/defendant The Court : This GA 520 of 2017 in connection with C.S. 40 of 2010 filed on behalf of the defendant is for addition of parties, namely, Sricon having its office at Sricon House 25, Pragati Layout, Rajiv Nagar, Wardha Road, Nagpur, 440025 and HSCL-SIPL (JV) (hereinafter referred to as the said JV) having its principal place of business at 5/1 Commisariat Road, Hastings, Kolkata-700022. The case of the defendant in the present application, in short, is that -
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a) At all material times the petitioner was and still is engaged in the business of diverse construction activities across India. Petitioner is a Public Sector Undertaking of the Government of India and 100% of its share-holding is vested with the President of India. The petitioner is registered under Companies Act, 1956.
b) In furtherance of its business, the petitioner entered into a Memorandum of Understanding dated 14th September, 2004 in short, "the said MOU" with Sricon.
c) Pursuant to and in terms of an MOU between the petitioner and Sricon, the petitioner entered into a joint venture agreement for the purpose of participating in and/or submitting bids in respect of a tender quoted by the National Highways Authority of India in short, (NHAI) for the construction of a four-lane highway.
d) The joint venture so framed by the petitioner and Sricon in terms of the joint venture agreement, the said JV became a separate and distinct legal entity. The petitioner was the lead partner of the joint venture and had a stake of 51% in the same while Sricon had a stake of 49%.
e) At a meeting held on 11th December, 2006 Sricon requested the petitioner for financial assistance for the execution of the project and Sricon agreed to complete the work at another meeting held on 30th September, 2007. It was agreed and/or decided that Sricon is the actual 3 executor of the said project in respect of the said contract and would complete the work thereof.
f) Various orders were placed on the plaintiff by the said JV and/or on behalf of the said JV for the purpose of executing for the project. According to the petitioner, it did not place any order on the plaintiff in its own capacity and/or for its own use. It is submitted that all orders placed by the petitioner on the plaintiff, were on behalf of the said JV. The said plaintiff supplied certain equipments to the said JV. In pursuance of the aforesaid orders no supplies were made to the petitioner. In the aforesaid background fact it is the case of the defendant/petitioner that since Sricon and H.S.C.L. - S.I.P.L. (J.V.) have direct interest in the suit and orders were placed at their instance, for all practical purpose, they are necessary and for proper parties. The petitioner claimed that the suit cannot be adjudicated at all and in the interest of justice the said Sricon and JV are required to be brought on the file of the present suit as defendants and for such purpose, the present application has been taken out by the defendant to add them as party-defendants. It is further submitted by the learned counsel appearing for the petitioner that the defendant filed written- statement in the instant suit. The issues in the above suit were framed by the Hon'ble Court with the consent of the parties by an order dated 30th November, 2012. Learned counsel for the petitioner has drawn the attention of this Court to the issues framed by this Court where one of the issues is as to whether the suit is defective because of non-joinder of necessary parties. According to the 4 defendant, issue was framed by an order dated 30th November, 2012 by a Hon'ble Single Judge of this Court wherein issue nos. 2 and 3 were as follows :
"2. Is the suit bad for defect of the parties?
3. Was the defendant acting in the capacity of an agent of HSPL-
SIPL (JV) in its dealing with the plaintiff?"
The said order was modified by another Hon'ble Judge of this Court wherein the issue nos. 2 and 3 were deleted. The said modified order by His Lordship was dated 24th July, 2013 whereby His Lordship was pleased to omit and/or delete the aforesaid two issues. The said order dated 24th July, 2013 was carried in appeal before the Hon'ble Division Bench and the Hon'ble Division Bench presided over by the Hon'ble Justice Ashim Kumar Banerjee by an order dated 2nd September, 2013 again modified the aforesaid order and observed that two issues deleted earlier should find place again and, accordingly, the issues were recast wherein the deleted issues were incorporated once again. Having regard to such orders passed by this Court petitioner submits that the application for seeking addition of party should be allowed.
Learned counsel appearing for the petitioner, in respect of his submission, has relied on a judgment in the case of Amit Kumar Shaw & Anr. - Vs. - Farida Khatoon & Anr., reported in (2005) 11 SCC 403. Relying on paragraphs 9 and 10 of the said judgment the petitioner submitted that object of Order I, Rule 10, CPC, is to discourage contest on technical pleas and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. He submitted that right to 5 be added as a party does not depend only that the party has to have some interest in the suit property. The next decision the petitioner has relied on is a decision in the case of Thomson Press (India) Ltd. - Vs. - Nanak Builders & Investors Pvt. Ltd. & Ors., reported in (2013) 5 SCC 397. The petitioner has relied on this decision with the object that if it is found that some other persons are also involved with regard to the claim of the plaintiff they should be treated to be necessary party and be brought on record. However, the facts of this case are different and the decision which had been rendered by the Hon'ble Supreme Court is at the instance of the intervener. The petitioner is not an intervener rather he is a party-defendant and he has been avoiding his responsibility.
The last decision which the petitioner relies on is the decision in the case of Mumbai International Airport Pvt. Ltd. - Vs. - Regency Convention Centre & Hotels Pvt. Ltd. & Ors., reported in (2010) 7 SCC 417. This decision of the Hon'ble Apex Court also discusses about the principles underlying Order I, Rule 10 of the Code of Civil Procedure. The Hon'ble Apex Court has ruled that it is the general rule in regard to impleadment of parties that the plaintiff in a suit being dominus litis may choose the persons against whom he is to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Paragraph 13 of the said decision is set out below :
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff.6
But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"10. (2) Court may strike out or add parties. - The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.""
Learned counsel for the petitioner has drawn the attention of this Court to paragraphs 14 and 22 which says that Court can add or delete any party at any stage of the suit. The said proposition cannot be doubted by any stretch of imagination because Civil Procedure Code is very clear with regard to the power of the Court to add or strike out a party. It is the discretion of the Court to add or strike out a party in the proceeding although, such discretion is to be exercised judiciously and consciously. The decision cited by the petitioner is of no help because those decisions are on different context. It is the duty of the petitioner to prove that the parties left out by the plaintiff and proposed to be added by the defendant are necessary parties within the meaning of Civil Procedure Code and in their absence suit cannot be adjudicated at all. Only when such test is satisfied one can claim that Court should exercise its judicial discretion to bring those parties on record otherwise the Court should exercise its power to dismiss the suit. The proposition that a necessary party should be added in the suit is a settled position of law. The question remains who can make such prayer for 7 addition of party. In the present case, the petitioner is a defendant. The suit has been filed claiming certain relief against him and he shifted his burden towards other persons not parties in the suit. If the plaintiff has knowingly omitted a party as defendant in the suit, his suit might fail.
Mr. Dutta, learned counsel appearing for the plaintiff/opposite party, has vehemently opposed the petitioner's contention that Sricon and JV are parties necessary to the suit. He submits that if the petitioner becomes successful to show that there was a joint promise on the part of defendant and others proposed to be added then only the petitioner's case for proposed addition could be entertained. In this case, as Mr. Dutta submitted, there has been no such joint promise and the plaintiff has also no subsisting claim against others and, therefore, the plaintiff cannot be forced to make them parties. Mr. Dutta submits that when the defendant alone is liable to the plaintiff and the defendant has placed the order, it is his obligation to make payment and any departure therefrom makes him liable directly to pay to the plaintiff. The plaintiff need not run after any person with whom plaintiff had no dealing at all. According to Mr. Dutta, the plaintiff is not supposed to know as to what are the other persons with whom any Memorandum of Understanding or any joint venture agreement has been entered into by the defendant no.1. Therefore, according to Mr. Dutta, the defendant cannot avoid his responsibility in fulfilling an obligation to make payment on the basis of the order placed by it. Mr. Dutta, relying upon statements made in paragraphs 5, 6 and 7 of the plaint, has drawn the attention of this Court to the fact that the defendant alone is responsible for the claim 8 made by the plaintiff in his plaint. Mr. Dutta also refers to paragraph 7 of the written-statement in which paragraph 5 to 7 of the plaint has been dealt with and the same does not speak of any interest of a third party. Mr. Dutta submits that at least paragraph 7 does not show that the defendant has denied single promise.
The plaintiff's suit is based on a money claim. According to the plaintiff, by a letter dated 4th March, 2009 he made a claim and the said letter was received by the defendant on 20th March, 2009 at 5/1, Commisariat Road, Hastings, Calcutta - 700022, and since the defendant failed to meet the demand of the plaintiff, the suit was filed in 2010, within the period of limitation (three years from the date of claim). The suit has all through been contested by the defendant no.1 alone. The present is at a stage when evidence is going on. At this stage, the defendant has filed this application praying for addition of two other parties on the ground that the said two parties were also involved in the claim of the plaintiff with the defendant in this suit. Such plea of the defendant cannot be accepted particularly when there is no privity of contract between the plaintiff and the other parties proposed to be added by the defendant. Those apart, it is the settled principle of law that even assuming that the plaintiff may have some claim against those third parties Sricon and JV, such claim is barred by limitation and if any claim is barred by limitation against a party, plaintiff cannot be allowed to implead those parties in the suit.
Learned counsel appearing for the petitioner could not satisfy this Court with regard to the question of limitation. On a bare reading of the plaint pleading 9 the claim against proposed parties appears to have been barred under the law of limitation. Without going into any other question it can be held that the defendant cannot compel the plaintiff to add the parties as sought for in the application. This Court is, however, not unmindful of the decision cited by the petitioner himself. The decision reported in (2010) 7 SCC 407 goes against the defendant on the question of limitation. Paragraph 24.1 says that if the claim against a person is barred by limitation it may refuse to add him.
The primary meaning of a party is a litigant who has a part to play in the proceedings. A necessary party is one without whom no order can effectively be made. A proper party is one whose presence is necessary for a pleading and final decision of question involved in the proceedings. Where the impleadment of a person would change the complex of the litigation his or her presence is neither necessary for the decision of the question involved in the proceedings, nor to enable the Court effectively and completely to adjudicate upon and settle the question involved in the case. Such a person is neither necessary, nor a proper party. The object of Rule 10(2) is not to prevent multiplicity of actions though it may incidentally have that effect. But that is a desirable consequence of the rule rather its main objective. The only reason which makes it necessary to make a person party to an action is that he should be bound by the result of the action and the question to be settled. Facts of the present case does not warrant impleadment of Sricon and JV because the defendant has not been able to prima facie show that there was any joint promise between those two and the defendant so far as the claim of the plaintiff is concerned. On a bare reading of the 10 pleadings in the plaint and the annexures relied on by the plaintiff does not show that the plaintiff made any claim against the said Sricon and JV. The basic principle to be kept in view is that the plaintiff who is the dominus litis of the proceedings cannot be compelled to contest against a party against whom he does not wish to contest.
Having regard to the above this Court is of the clear view that there is no cause of action in the present suit so far as the proposed third parties are concerned and the plaintiff cannot be compelled to add them as party- defendants.
The contention of the petitioner in the present GA 520 of 2017 cannot be sustained and the same cannot be allowed.
The application is, therefore, dismissed.
(SAHIDULLAH MUNSHI, J.) sp3