Delhi District Court
K. K. Modi Investment And Financial ... vs Apollo Group Inc And Ors on 24 April, 2018
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No. 207321/16
In the matter of :
K. K. MODI INVESTMENT AND FINANCIAL SERVICES
PVT LTD & ORS
.....Plaintiff
Vs
APOLLO GROUP INC AND ORS
......Defendant
ORDER
Vide this order I shall decide the application under order 22 rule 9 r.w. section 151 of the CPC r.w. section 5 of the Limitation Act, 1963 filed by the plaintiff on 26.09.2016 and the application under order 22 rule 4 filed by the plaintiff on 25.05.2015.
1. The plaintiff filed an application under order 22 rule 4 for bringing on record the legal representatives of the deceased defendant no: 5 on 22.02.2015. In the course of arguments as recorded under order dated 03.09.2016 when it was brought to the notice of the Ld. Counsel for the plaintiff that the application is filed after the expiry of 90 days and without any application for condonation of delay or for setting aside of the abatement, the plaintiff preferred an application under order 22 rule 9 r.w.s. 151 CPC and for condonation of delay on CS No.207321/16 Page 1 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors 26.09.2016.
2. Ld. Counsel for the plaintiff / applicant submits that no abatement has taken place in the facts and circumstances of the case and no separate application to set aside abatement and seeking condonation of delay is required once an application under Order XXII Rule 4 CPC has been filed by the plaintiff. However, only by way of abundant caution the application for setting aside abatement and condonation of delay are filed. The plaintiff is seeking condonation of delay in seeking impleadment of the legal representatives of late Defendant no: 5 (Mr. John G. Sperling) as the defendant no: 5, a citizen and permanent resident of the United States, expired in the United States on 22.08.2014. The plaintiff is not related to defendant no: 5 and had no means of discovering the fact or date of Defendant no: 5's death. That on 08.12.2014, i.e. after 108 days from the date of death application under order XXII Rule 10 A CPC being IA no: 208 of 2015 in CS (OS) 2205/2010 seeking to communicate the fact of Defendant no: 5's death to the court as also to the plaintiff, was filed and the court issued notice on this application on 06.01.2015 and directed the plaintiff to take appropriate steps to implead the legal representatives of deceased defendant no: 5. That this direction by the Court to implead the LRs was given after the expiry of 90 days from the date of death of the defendant no: 5. Therefore, the automatic abatement of the suit, if any, came to be set aside by the Court itself on 06.01.2015. That since the defendant no: 2 to 8 had failed to give details of the LRs of defendant no: 5 in their IA no: 208 of 2015 in CS (OS) 2205 / 2010 and the plaintiff had CS No.207321/16 Page 2 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors absolutely no means of finding those out of all by itself, on 09.01.2015 the plaintiff wrote a letter to counsel for defendants, Mr. Dhruv Wahi and the power of attorney holder of defendant no: 5, Mr. Ajit Kumar, calling upon them to disclose the necessary details of the proposed LRs within three days of receipt of the letter so as to enable the plaintiff to take appropriate steps, however, since no assistance was forthcoming from the defendants, the plaintiff was granted additional time to take necessary steps for impleadment by order dated 21.01.2015. That meanwhile, the defendant no: 2 to 8 filed two appeals viz., FAO (OS) 513 of 2014 and FAO (OS) no: 4 to 2015 against the order of the learned single judge of the Hon'ble High Court of Delhi dated 31.10.2014 dismissing the application filed by Defendants no: 2 to 8 under order VII Rule 11 CPC and order 1 rule 10 CPC. And in the course of hearing of the said appeals, i.e. on 07.01.2015, the hon'ble Court was informed of the death of defendant no: 5. The court ordered the appellants / defendants to take steps to implead the legal representatives of deceased defendant no: 5 forthwith in both appeals. On 04.02.2015, in compliance with the directions of the Court dated 07.01.2015, the defendant no: 2 to 8 moved two applications being CM no: 2200 of 2015 in FAO (OS) no:
513/2014 and CM No: 2201 of 2015 in FAO (OS) no: 4/2014 under oder XXII rule 4 CPC seeking to implead MS Terry Bishop and Ms. Darby Shupp as the LRs of deceased defendant no: 5. Mr. Peter G. Sperling, the third LR according to the defendants, was stated to already be a party as defendant no: 6. That the defendants / appellants categorically sought the impleadment of the two new LRs and a CS No.207321/16 Page 3 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors direction to take on record the amended memo of parties. That notice of the aforesaid applications was issued to the proposed LRs by the Court on 06.02.2015 and 07.04.2015. That the proposed LRs without any demur or protest accepted notice and also filed vakalatnamas in the appellate proceedings. That both the applications, i.e. CM no:
2200 of 2015 in FAO (OS) No: 513/2014 and CM No: 2201 of 2015 in FAO (OS) No: 4/2014 filed by the appellants / defendants under order XXII rule 4 CPC were allowed on 14.07.2015 in the presence of Mr. Mohit Bhardwaj, counsel for the proposed LRs and the amended memo of the parties was taken on record. The order dated 14.07.2015 duly records the presence of Mr. Mohit Bhardwaj. That no objections were taken by the said counsel despite having due notice of the said applications way back in May 2015 and being present in the court on 14.07.2015. That the fact that the proposed LRs had due notice and had entered appearance in the appeal and had themselves evinced intention to be impleaded as LRs of deceased defendant no: 5 in the appeal as well as the suit is evident from a perusal of the Special Power of Attorney dated 02.06.2015 and 28.05.2015 executed by Ms. Terry Bishop and Ms. Darby Shupp respectively in favor of Mr. Vijender Kumar. That the said power of attorney specifically records that the attorneys were being appointed by Ms. Darby Shupp and Ms. Terry Bishop in their capacityy as LRs of deceased defendant no: 5 in CS (OS) no: 2205/2010 and trustees of John Sperling Revocable Trust. Therefore, the conduct of the proposed LRs in now seeking to oppose their impleadment is evidently a dilatory tactic. That to fulfill the technicality of bringing on record an amended memo of parties in CS No.207321/16 Page 4 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors the suit and in compliance with the directions of Court dated 06.01.2015 and 21.01.2015, the plaintiff, on 24.02.2015, filed an application under order XXII rule 4 CPC seeking inter alia, impleadment of the aforementioned three LRs. Although the said application was not necessary given that the impleadment had already taken place in the appeal, preempting the defendant's objections, the plaintiff filed the said application being I.A. no: 4292 of 2015 in CS (OS) no: 2205 of 2010. That notice was issued on the said IA by the hon'ble High Court on 02.03.2015 and 25.05.2015. That the mala fide of the proposed LR's of late defendant no: 5 became evident when despite having knowledge of the IA's and despite appointing attorneys, they failed to enter appearance in the suit. The plaintiff was constrained to seek a direction to serve the proposed LRs through the counsel in the two appeals, which prayer was allowed. Ultimately, Mr. Mohit Bhardwaj accepted notice on behalf of the proposed LRs on 06.11.2015 and filed his reply to the IA on 22.12.2015 taking untenable objections such as abatement of the suit and also other frivolous objections which were categorically dismissed by the hon'ble High Court in its judgment dated 17.08.2015. That it is settled law that once legal representatives are brought on record at any stage of the proceedings, their impleadment enures for the benefit of the entire proceedings and for all parties, including the suit if said impleadment has taken place in an appeal. In this case, the impleadment of the LRs was done at the behest of appellants / defendant nos. 2 to 8 in FAO (OS) 513 of 2014 and FAO (OS) no: 4 of 2015. Once the applications for impleadment filed by the CS No.207321/16 Page 5 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors defendants in the two appeals were allowed, the same had the effect of bringing the legal representatives on record not only in the appeals but also in the suit. Therefore the question of the abatement of suit or for that matter filing an application for condonation of delay did not arise.
3. Ld. Counsel for the defendant on the other hand contends that the plaintiff has filed the present application highly belatedly, after a delay of more than 19 months from the date of filing of the application under Order XXII Rule 4 r.w. section 151 CPC and after two years one month and three days from the date of death of late Mr. John G Sperling. The same is hopelessly barred by limitation and is not maintainable at this belated stage when several hearings have already taken place and arguments on the application under order XXII Rule 4 r.w. section CPC filed by the plaintiff had concluded. The present application having been filed as an afterthought is therefore, an abuse of the process of law and is liable to be dismissed on this ground alone. That the plaintiff could file the application under order XXII rule 4 only if, one of the two or more defendants died and the right to sue did not survive against the surviving defendant or defendants alone. There is no necessity of filing of the application under order XXII rule 4 for substitution of the legal representatives of the deceased defendant no: 5 as the suit could be continued against the surviving defendants. Therefore, since the application under order XXII rule 4 itself is not maintainable, the present application for setting aside abatement against defendant no: 5 or its legal representatives and condonation of delay in filing the CS No.207321/16 Page 6 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors application is also not maintainable and the same is liable to be dismissed on this ground alone. That Mr.Peter G. Sperling, the son of the deceased defendant no: 5 who is presently the chairman and majority share holder of Apollo Group Inc. and the trust and controls the same is already arrayed as defendant no: 6 in his personal capacity, therefore, there is no necessity of impleading any other legal representatives of the deceased defendant no: 5. Further, as disclosed by the counsel for the LR's during the proceedings the legal representatives sought to be impleaded namely Terry Bishop and Ms. Darby Shupp neither control nor are related to defendant no: 5 and are therefore, neither necessary nor proper parties. Necessary party is one without whom the order that may be passed finally in the suit cannot be made effective. Further, the present suit is for permanent injunction, the cause of action as alleged in the plaint against defendant no: 5 was personal in nature which cannot be claimed against the legal heirs / LR's of the deceased.
4. I have heard the Ld. Counsels and perused the record with their able assistance.
5. The defendant no: 5 is stated to have died on 22.08.2014, the application for bringing on record the LR's of the deceased defendant is filed on 22.02.2015 and for setting aside of the abatement and condonation of delay is filed on 26.09.2016. The learned counsel for the defendant has vehemently argued that there is a delay of more than 19 months in filing the application under order 22 rule 4 and the abatement is sought to be set aside after over two years of the date of death of the deceased defendant. It is Order 22 of CS No.207321/16 Page 7 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors the code of Civil Procedure that guides the Courts in meeting such unforeseen exigencies as the death of a party during the pendency of the proceedings. Rule 1 commands that : No abtement by party's death if right to sue survives - The death of a plaintiff or defendant shall not cause the suit to abte if the right to sue survives.
The procedure to be followed in the event of death of one of several defendants or sole defendant is envisaged as follows in Rule 4 : "Procedure in case of death of one several defendants or of sole defendant - (1) Where one of two or more defendants ides and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under subrule (1) the suit shall abate as against the deceased defendant"
CS No.207321/16 Page 8 of 18K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors
6. In the event of there being no application for bringing on record the LR's of a deceased defendant within the period prescribed by law the suit abates against such a defendant as a consequence prescribed by operation of law. The recourse against abatement is laid down under Rule 9 as follows : "Effect of abatement or dismissal - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub rule (2)"
In terms of sub rule (5) of Rule 4, the ground of ignorance of the factum of death of the defendant is available as sufficient cause for not making the application within the period prescribed by law. The deceased / defendant no. 5 is a U.S. citizen and not related / associated / connected to the plaintiff. Under such CS No.207321/16 Page 9 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors circumstances even with the exercise of due care and utmost diligence, the plaintiff could not in the ordinary course of things come to have acquired notice of the death of the defendant no. 5 on 08.10.2014
7. A perusal of the record reveals that an application under Order 22 Rule 10A was filed on behalf of defendants no: 2 to 8 on 08.12.2014 for communicating to the court the death of defendant no:
5. The prayer in the application is for taking on record the information about the death of defendant no: 5 and communication of the said information to the plaintiff and for deletion of the name of defendant no: 5 from the array of parties.
8. The factum of the death of defendant no: 5 is for the first time communicated to the plaintiff vide the said application and within 90 days of the communication of the factum of the death of defendant no: 5, the plaintiff filed an application under order 22 rule 4 for bringing on record the legal heirs of the deceased defendant no: 5.
In terms of rule 10A when ever a pleader appearing for the party to the suit comes to know of the death of party, he is enjoined upon to inform the court about the death of the party and the court is thereafter to give notice of such death to the other party. The plaintiff upon being put to notice of the fact of death of defendant no: 5 took time to take appropriate steps and the steps in accordance with law are taken within 90 days thereof. It is pertinent that the application for bringing on record the fact that the defendant no: 5 has died during the course of the proceedings itself is filed after the expiry of 90 days. The plaintiff has been granted the liberty to take appropriate steps in CS No.207321/16 Page 10 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors accordance with the information so communicated vide IA No: 208 / 2015, on 06.01.2015. In effect the abatement as a consequence of operation of law was set aside vide order dated 06.01.2015 when the plaintiff was granted the opportunity to take appropriate steps in accordance with law, for the rules of procedure for setting aside of the abatement are to be construed liberally abatement being a denial of the conclusion of hearing on merits.
9. It is pertinent that the defendants while bringing to the light of the proceedings the factum of death of defendant no. 5 on 08.10.2014 did not venture to disclose the details of the legal representatives of the deceased defendant no. 5 if any. The details and particulars of the LR's of deceased defendant no. 5 are made privy in the course of the appellate proceedings arising out of the suit. The defendant no. 2 to 8 had filed applications under Order 1 Rule 10 and under Order 7 Rule 11 CPC for deletion of their names from the array of parties and rejection of plaint which applications came to be dismissed vide order dated 30.11.2014 and the defendants no 2 to 8 challenged the order in two separate appeals (FAO (OS) 513 of 2014 and FAO (OS) 4/2015) and in the course of these appellate proceedings sought impleadment of Ms. Terry Bishop and Ms. Darby Shupp as the legal representatives of deceased defendant no. 5 besides the son of the deceased namely Mr. Peter Sperling already a party to the proceeding in his own capacity.
When the particulars of the LR's are brought on the record by the defendants 2 to 8 in the course of the appellate proceedings, the plaintiffs filed the application under Order 22 Rule 4 CS No.207321/16 Page 11 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors CPC on 22.02.2015 and as the application was filed after 90 days of the death of the deceased defendant an application under Order 22 Rule 9 and for condonation of delay was also filed subsequently. There is sufficient cause for the delay in filing of the application under Order 22 Rule 4. Want of diligence is not discernible from the record on the part of the plaintiff in such facts and circumstances. Moreover as concluded in the earlier part of the discussion the order dated 06.01.2015 directing the plaintiff to take appropriate steps upon connumincation of the factum of the death of defendant no. 5, passed after 90 days of the date of the death tantamounts to setting aside of the consequential abatement.
10. There is another aspect of the matter. The LR's of the deceased / defendant no. 5 as detailed elsewhere in the order were brought on the record vide order dated 14.07.2015 in the course of the appeals arising from order dated 30.11.2014. Hon'ble Supreme Court in the case titled as "Mithalal Dalsangar Singh Vs Annabai Devram Kini (Lahoti.J.), has held that:
"There is yet another aspect of the matter. As we have already noticed, the appeal against the order of ad interim injunction passed by the learned trial judge was pending before the Division Bench. Therein the defendants had themselves moved an application for bringing on record the legal representatives of the deceased plaintiff, that is, the respondent in their appeal. The legal representatives being CS No.207321/16 Page 12 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors brought on record at any stage of their proceedings ensures for the benefit of the entire proceedings. The prayer made by the defendants in their appeal for bringing on record the legal representatives of the deceased plaintiff - respondent in appeal was not opposed by the legal representatives or by any of the coplaintiffs. Rather the prayer was virtually conceded to by the legal representatives themselves moving an application for being brought on record in the suit in place of the deceased plaintiff. In our opinion, the application made by the defendant appellants in the appeal once allowed would have the effect of bringing the legal representatives on record, not only in the appeal but also in the suit. All that would remain to be done is the ministerial act of correcting the index of the parties by the applicants in appeal and then in the suit. In view of the defendants themselves having sought for impleadment of the legal representatives in the appeal the delay in moving the application in the suit by the legal representatives, being subsequent in point of time, became meaningless."CS No.207321/16 Page 13 of 18
K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors
11. In the case at hand it is on the directions of the Court in the course of the appellate proceedings that the LR's of the deceased / defendant no. 5 are brought on record and the LR's have appointed an attorney for the conduct of the proceedings and contested the appeal which came to be dismissed. This factual variation is not significant enough to render the ratio inapplicable, the matter at hand being distinguishable in facts. The ratio decidendi applies squarely to the case at hand where once the LR's of a deceased party are impleaded in the course of appellate proceedings such impleadment enures for the benefit of the trial also and for the purposes of the trial the LR's have been brought on record where they are impleaded and contest the appellate proceedings. I am in agreement with the contention of the Ld. Counsel for the plaintiff that once the LR's were impleaded in the course of FAO arising out of order dated 30.11.2014, the LR's were on the record of the suit for all intents and purposes and only the memo of parties to the suit was required to be amended. The LRs of the deceased defendant no: 5 had been put to due notice of the pendency of the present proceedings and were served and impleaded as parties as representives of the defendant no: 5 since deceased in the course of the appellate proceedings. An application under order 22 rule 4 is not mandated to be preferred by the plaintiff alone. The court on an application is to bring on record the LRs of the deceased defendant as party defendant and thereafter is to proceed with the suit. It is only where the plaintiff despite notice of the death of the defendant fales to bring on record the LRs of the defendant, within a period of ninety days that the suit against the said defendant abates as CS No.207321/16 Page 14 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors a necessary consequence thereof. Where once the legal heirs are impleaded as parties in the course of appellate proceedings, the legal heirs having been put to sufficient notice, there arises no question of abatement and the impleadment in the course of the appellate proceedings, appeal being a continuation of the lis, is as good and effective as an impleadment to the proceedings of the suit as legal representative of the deceased defendant. Moreover the plaintiff having acquired the requisite information as regards the particulars of the legal representatives from the contents of the application filed in the course of the legal proceedings has acted in right earnest in moving the court for bringing on record of the suit the LRs of the deceased defendant no: 5. Before the issuance of notice in the application filed by the defendants no: 2 to 8 in the course of FAO OS No: 513 / 2014 and FAO OS no: 4 / 2014 the plaintiff was not privy to the necessary information and despite exercise of due diligence could not have brought on record the LRs of the deceased defendant.
12. The learned counsel for the defendant contends that the right to sue survives against the surviving defendants alone the cause of action set up being of personal kind, in the nature of an injunction it does not survive after the death of defendant no. 5 as against the LR's of defendant no. 5 Learned counsel for the plaintiff on the other hand contends that the deceased defendant no: 5 was the Executive Chairman of Defendant no: 2 and the founder of the Apollo group of Companies. The deceased Defendant no: 5 and the defendant no: 6 together controlled the John Sperling Voting Stock Trust and Peter Sperling Voting Stock trust. The now deceased defendant no: 5 and CS No.207321/16 Page 15 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors defendant no: 6 and the two trusts collectively own 100% of Defendant no: 2's classB common stock. Through the direct / indirect shareholding and the shares held by the aforesaid trusts, the deceased defendant no: 5 exercised complete control on business operations of defendant no: 1 to 4 and 8, as also their respective management including constitution of the Board of Directors. Further, the proposed LR's through their attorney holder have filed an affidavit to the effect that the defendant no: 2 filed form 8K on February 1, 2017 with the United States Securities and Exchange Commission announcing the closing of a merger transaction by which AP VII Questo Holdings, L.P. ("the Parent") acquired each and every share in defendant no: 2. That as a result of this merger transaction on February 1, 2017, the parent is the sole shareholder in Defendant no: 2 and Defendant no: 2 is a whollyowner subsidary of the parent, the proposed Defendants do not own any shares in Defendant no: 2, either in their individual capacity or in their capacity as Trustees of the Trust established by the Deceased defendant no: 5. That pursuant to the said merger each share of the Company's class A common stock and each share of the Company's ClassB commons stock issued and outstanding immediately prior to the effective date of merger was cancelled and converted into the right to receive $10.00 share in cash without interest, and a change in the control of the company occurred whereby the proposed defendants resigned from their position as Directors of Defendant no: 2 and neither of the proposed defendants has any ownership interest in Defendant no: 2 or serves as an Officer or Director of Defendant no: 2 as on date.
CS No.207321/16 Page 16 of 18K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors
13. It is pertinent in this regard that the defendant no: 5 along with defendants no: 2 to 8 had filed an application under order 1 rule 10 and order 7 rule 11 for deletion of their names as party defendants and for rejection of the plaint against defendants no: 2 to 8. The applications were dismissed vide order dated 31.10.2014, thereby holding that the presence of defendants no: 2 to 8 is necessary to effectively and completely adjudicate upon the disputes and issues raised by the plaintiff in the suit taking into consideration the contention of the plaintiff that the defendants are attempting to use the device of various corporations to frustrate the existing contracts entered into with the plaintiff and the defendant no: 1 and that the contract entered into between the plaintiff and defendant no: 1 is binding on all the remaining defendants on account of conduct explicit and implicit of the defendants though there may not be as such a privity of contract between the plaintiff and defendants no: 2 to 8, however, the privity has been created by conduct. The suit of the plaintiff is for permanent injunction thereby restraining the defendants from directly or indirectly participating in any manner whatsoever in a business or organization involving higher education service or any component thereof and it has remained as the contention of the plaintiff that the defendant no: 1 and 2 have been continually devising ways and means to morph into apparently distinct and unconnected entities in order to prejudice the contractual obligations in favor of the plaintiff in the form of share holders agreement, implementation agreement, besides other agreements the subject matter of the controversy as involved for adjudication under CS No.207321/16 Page 17 of 18 K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors the present suit. In view of the order passed by Hon'ble The High Court of Delhi which has been upheld in appeal thereby holding that defendant no: 5 is a necessary and proper party and as the defendants no: 2 to 8 themselves had impleaded Ms. Terry Bishop and Ms. Darby Shupp along with Peter G. Sperling as the legal representatives of the deceased defendant no: 5 and Ms. Terry Bishop and Ms. Darby Shupp contested the appeal as legal representatives of the deceased defendant no: 5, there is no ground for concluding that the right to sue survives against the remaining defendants alone, and that there is not necessity of bringing on record the legal representatives of the deceased / defendant no. 5.
14. For the reasons aforestated, the applications are allowed, the proposed LR's are ordered to be impleaded as defendant no. 5(a) and 5(b). Amended memo be filed within 15 days.
15. Nothing stated herein above, however, shall be deemed to be an expression of opinion on the merits of the claims of the parties. The observations contained herein shall have no bearing on the merits of the claim or the final outcome.
Pronounced in the open Court (Neelofer Abida Perveen) on this 24th of April, 2018. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The order contains 18 pages all checked and signed by me.
CS No.207321/16 Page 18 of 18K.K. Modi Investment & Financial Services Pvt Ltd & Ors Vs Apollo Group & Ors