Delhi District Court
Ex. 29/19 Cna vs . Janak Datwani & Anr Dated 26.07.2021 ... on 26 July, 2021
IN THE COURT OF SH. LALIT KUMAR,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST,
SAKET COURTS, NEW DELHI
Presiding Officer: Sh. Lalit Kumar, ADJ04
In the matter of :
Ex. 29/2019
M/s C.N.A Export Pvt. Ltd. ......... Decree Holder
versus
Sh. Janak Datwani & Ors. ......... Judgment Debtors
ORDER
26.07.2021
1. Vide this order, I shall decide the application of Decree Holder filed under Order 1 Rule 10 (2) read with Section 151 CPC seeking deletion of the names of JD No.1 Sh. Janak Datwani in the array of memo of parties.
2. Brief facts of the application are that a consent decree was passed by the Hon'ble High Court of Delhi in CS (OS) No.698/2003 vide order dated 17.04.2007 amongst the parties i.e. Decree holder and JD no.2 and 3. At the time of the filing of the present execution petition, the name of the JD No.1 mentioned in the execution petition inadvertently when admittedly the JD No.1 has nothing with the property in petition and he had not been Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.1 of 13 considered for any allotment of any share. JD No.1 was made a party civil in civil suit no.698/2003 which was filed by his exwife i.e. JD No.3 in the aforesaid suit and in the said suit, the JD No.1 has admitted that in para no.11 of his written statement "it is further pointed out that the answering defendant does not own any share in the property (i.e. 6, Friends Colony, West, New Delhi) in his individual capacity". And JD No.1 has no right, title or interest in the present execution petition as individual capacity nor he is necessary or essential or property party. The JD No.1 has encroached upon and is using the portion of the decree holder company. It is, therefore, prayed that present application may be allowed and name of JD No.1 be deleted from the array of parties.
3. Per contra the application has been contested by the JD No.1 by filing reply and submitted that the JD No.1 is the majority shareholder in the judgment debtor no.2 company and is the exhusband of JD No.3. In 2003 JD No.3 filed a suit for partition being Suit no.698/2003 titled Jaskirat Datwani Vs. Janak Datwani & Ors, wherein JD No.1 was the defendant no.1 and DH herein was the defendant no.3. No objection with regard to JD No.1 being party to the main suit was raised by the DH herein in the suit proceedings at any stage. The Court has passed the final decree on 17.04.2007 thereby partitioning the property considering all parties and their status in the suit. Neither the court nor any party including DH has raised any dispute to the position of JD No.1 at this stage as well. The DH herein has filed appeals from the order passed in the aforesaid suit wherein JD No.1 has been made a party by the DH itself. An FAO (OS) No.152/2008 titled CNA Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.2 of 13 Exports Pvt. Ltd. Vs. Mrs. Jaskirat Datwani & Ors arising out of Suit CS (OS) 698/2003 was filed by the DH where JD No.1 was made a party as respondent no.3 by DH itself. Aggrieved by the order dated 26.07.2010 passed in the aforesaid FAO, SLP being 32452 & 32453 of 2010 was filed by the DH in the Supreme Court of India, wherein also JD No.1 was made a party by DH and therefore, it is clear that JD No.1 has been a party to the main suit and all other proceedings arising out of the suit and the said position has been accepted by the DH as well.
4. It is further stated that DH has filed the present execution petition wherein JD No.1 has been made a party by the DH and DH has for the first time raised this issue of deletion of JD No.1 from the array of parties of the present execution petition at this belated stage only on 25.02.2021. Once the status of the parties has been accepted by the Decree Court and other superior courts including the Hon'ble Supreme Court of India, as well as all other parties including the DH, the DH cannot now raise this issue at this belated stage in the execution court.
5. It is also stated that the Hon'ble Division Bench of the Hon'ble Delhi High Court in the order dated 26.07.2010 passed in FAO (OS) no.152/2008 titled CNA Exports Pvt. Ltd. Vs. Mrs. Jaskirat Datwani & Ors. has noted that 24% share of the property in question is in the possession of JD No.1 since he is the 99% shareholder in IN Export Pvt. Ltd "The portion share in blue, is in the possession of Mr. Janak Datwani, because of his holding over ninety nine percent shares of the In Exports Private Limited; this Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.3 of 13 portion is twenty four percent of the suit property".
6. It is further averred that the Hon'ble DB of the Hon'ble Delhi High court in the order dated 26.07.2010 has further noted that unless JD No.1 has access and control over the Green Portion, he will be fully hemmed in by the Green and Pink portion & that JD No.1 would not have agreed on the present settlement with his exwife unless he had, at the relevant time, dominion over the Green portion "Prima facie, it appears to us that Mr. Janak Datwani would not have agreed on the present settlement with his exwife unless he had, at the relevant time, dominion over the Green Portion".
7. It is further stated that the Hon'ble DB of the Hon'ble Delhi High Court in the order dated 26.07.2010 has given a specific direction that Anand Datwani & Janak Datwani shall pay to the Receiver Rs.2000/ equally by the seventh of each month, which JD No.1 has been paying regularly while Anand Datwani has failed to pay the same. "The receiver shall be paid a monthly fee of Rs.2,000/ per month, to be borne by both the Applicant and Respondent nos. 2 and 3, which shall be borne equally by Mr. Anand Datwani and Mr. Janak Datwani and shall be paid before the seventh day of each calendar month".
8. It is further averred that the DH herein has filed multiple contempt petitions & Applications against JD No.1 in the Hon'ble Delhi High Court for the alleged noncompliance of the orders passed in suit CS (OS) 698/2003 and or proceeding / appeals Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.4 of 13 arising out of the said suit. Instead DH is praying for deletion of JD No.1 from the array of parties only to succeed in his malign intentions of illegally trying to encroach the share of DH in the property which is already the subject matter of 5 suits pending in Hon'ble Delhi High Court.
9. It is further stated that the Hon'ble Delhi High Court vide judgment and order dated 17.11.2020 further appraised the consolidation of the previous 5 suits and also consolidated suit CS(OS) no. 1292/2017. Now, six suits with respect to the 38% of the DH company in the suit property have been consolidated. The Hon'ble Division Bench also directed that the 4 pending appeals pertaining to the above 5 suits being FAO 141/2018, FAO 142/2018, CM(M) 876/2018 & CM(M) 1376/2018 also preferably be listed before the same Hon'ble Single Judge who will be hearing the above 6 suits.
10. It is further stated that the Hon'ble Division Bench vide order dated 28.08.2014 in FAO (OS) 118/2014 titled Sushma Ravidass Vs. Jamna Datwani & Ors has held that "since an issue concerning shareholding of the Datwani Family in CNA Exports Pvt. Ltd. is in issue in the suit in question, every family member to whom shares were allotted when the company was incorporated would be a proper party, if not necessary party so that a decision in the suit binds all".
11. It is further stated that the decree has been passed in 2007 and the Execution petition has been on or after 05.12.2018. The DH has not questioned the position of JD no.1 in the original Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.5 of 13 suit, proceedings arising out of the suit and the present execution petition at any stage and for the first time has raised this issue on 25.02.2021 vide an application. It is further stated that once the status of the parties has been admitted in the Decree Court, the DH cannot take a different stand before the execution court. It is further stated that DH has only picked the part of the WS that suits him. Once the position of a party has been confirmed by the Hon'ble High court as well as the Supreme Court of India, DH cannot challenge it not in Execution Court and it is a matter of fact that 24% share of the property belongs to JD No.2 and JD No.1 is the 99% share holder of the JD No.2 company. JD No.1 is paying the receiver of the property share of DH company. The shareholding of the DH company is right now in dispute and is the subject matter of 5 suits in the Hon'ble Delhi High court herein the JD No.1 is also a party seeking shareholding in DH share of the property. Till the said 5 suits are decided the shareholding of the share of DH in the property cannot be decided. It is further stated that DH has failed to show any reason as to why the name of the JD No.1 shall be deleted from the array of parties at this stage and it is prayed that the present application is wholly misconceived and devoid of merits and deserves to be dismissed.
12. Ld. Counsel for the decree holder has relied upon case law of Hon'ble Supreme Court of India report as Civil Appeal Nos. 16591660/2021 (@ Special Leave to Appeal Nos. 7965 7966/2020) with Civil Appeal Nos. 16611662/2021(@ SLP (C) Nos. 1185911860/2020) and Civil Appeal Nos. 16631664/2021 Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.6 of 13 (@ SLP Nos. 1179211793/2020 in case Rahul S Shah Vs. Jinendra Kumar Gandhi & Ors.
13. I have heard Ld. Counsel for the Ld. Counsel for applicant / DH and nonapplicant / JD no.1 and 2, perused the record and gone through the written submissions filed on behalf of both the parties.
14. Ld. Counsel for Decree Holder contended that JD no.1 admitted in his WS, which was filed during pendency of suit and that suit was filed by his exwife /JD no.3, mentioning that JD no.1 does not own any share in the property in individual capacity. It is further contented by the Ld. Counsel for DH that in view of the consented judgment and decree dated 17.04.2007, DH herein had applied for the execution, which is the execution in hand and in the array of the parties of execution in hand, the name of the JD no.1 Janak Datwani was mentioned as his name was arrayed as defendant no.1 by JD no.3 being plaintiff of the suit no.698/2003. It is further contended that admittedly JD no.1 has left with no right, title or interest in view of consent judgment and decree dated 17.04.2007. Therefore DH has requested that JD no.1 neither being proper essential party in present execution in hand in absence of any right his name need to be struck off.
15. Per contra, Ld. Counsel for JD no.1 and no.2 has argued that JD no.1 is exhusband of JD no.3 and majority shareholder of JD no.2 and shareholder of DH. JD no.1 was Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.7 of 13 made party to the said suit even though he did not have any share in the said property but no such objection was ever raised either by DH or any other party regarding JD no.1 having been made party to the said suit. It is further contended by Ld. Counsel that JD no.1 is the majority shareholder in the JD no.3 and he has also been made a party to the decree as well as in the appeal proceeding in FAO (OS) No.152/2008 in fact Hon'ble High Court has passed various directions against the parties to the appeal including JD no.1. It is further contended that DH itself also made JD no.1 party to the appeal before Hon'ble Supreme Court as well as in other suit and proceeding, which has been accepted by all the courts. Ld. Counsel further argued that JD no.1 is integral part in settlement and relation to the division of said property which is clear from the order dated 26.07.2010 passed by the Division bench of Hon'ble High Court of Delhi. In the said order the shareholding of the DH company was disputed, which was a subject matter of various suits pending before the the Hon'ble High Court. Now at the stage of execution which has been filed in the year 2018 and at this stage, DH cannot be allowed to delete the JD no.1 from the array of the parties.
16. Before deciding the above said application, it is necessary to discuss about the provisions under Order I Rule 10 CPC which is as under :
Order I : Who may be joined as plaintiffs - All the persons may be joined in one suit as plaintiffs where
(a) any right to relief in respect of or arising out of the same act or transaction or series of act or transactions is alleged to exist in such persons, Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.8 of 13 whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.
Rule 10 :
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfies that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court think just.
(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.
17. In the judgment of Hon'ble Supreme Court titled as Mumbai International Airport Versus Regency Convention Centre and Hotels Pvt. Ltd. & Ors., the court held that :
"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. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.9 of 13 impleadment of proper or necessary parties.
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. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. 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, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
Rule 10(2) CPC is not about the right of a non party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. In exercising its judicial discretion under the said rule, the court will of course act according to reason and fair play and not according to whims and caprice.
18. The main contention of DH is that JD no.1 had no right, title or interest, of whatsoever kind and nature, in the abovesaid property in his individual capacity, JD no.1 being defendant no.1 had even filed the written statement and JD No.1 has also no right, title or interest in the present execution petition neither in individual capacity nor he is necessary or essential or property party. The JD No.1 has encroached upon and is using the portion of the decree holder company.
Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.10 of 13
19. Perusal of record shows that the DH herein has filed appeals from the order passed in the suit CS(OS) 698/2003 wherein JD no.1 has been made a party by the DH itself. It is further shows that an FAO (OS) No.152/2008 titled CNA Exports Pvt. Ltd. Vs. Mrs. Jaskirat Datwani & Ors arising out of Suit CS (OS) 698/2003 was filed by the DH wherein JD No.1 was made a party as respondent no.3 by DH itself. Aggrieved by the order dated 26.07.2010 passed in the aforesaid FAO, SLP being 32452 & 32453 of 2010 was filed by the DH in the Supreme Court of India, wherein also JD No.1 was made a party by DH and therefore, it is clear that JD No.1 has been a party to the main suit and all other proceedings arising out of the suit and the said position has been accepted by the DH as well.
20. It further shows that the Hon'ble Division Bench of the Hon'ble Delhi High Court in the order dated 26.07.2010 passed in FAO (OS) No. 152/2008 titled CNA Exports Pvt. Ltd. Vs. Mrs. Jaskirat Datwani & Ors. has noted that 24% share of the property in question is in the possession of JD no.1 since he is the 99% shareholder in CNA Export Pvt. Ltd. Further it is seen that the Hon'ble Delhi High Court has held in the judgment dated 26.07.2010 that the shareholding of the DH company is fragmented. Further share of the property of DH company, which is the subject matter of the present execution petition is in dispute and is the subject matter of 5 suits pending in the Delhi High Court being suit no. CS(OS) No.118/2007, CS(OS) No.1113/2007, CS(OS) No.556/2008, CS(OS) No. 1798/2011 and CS(OS) No.244/2013. JD No.1 is also a party to these suits and is seeking Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.11 of 13 his shareholding in the DH property. The Hon'ble DB of the Delhi High Court vide judgment dated 16.05.2014 has consolidated the five suits with regard to shareholding of parties in the DH company.
21. Further the Hon'ble Division Bench vide order dated 28.08.2014 in FAO (OS) 118/2014 titled Sushma Ravidass Vs. Jamna Datwani & Ors has held that "since an issue concerning shareholding of the Datwani Family in CNA Exports Pvt. Ltd. is in issue in the suit in question, every family member to whom shares were allotted when the company was incorporated would be a proper party, if not necessary party so that a decision in the suit binds all".
It may be seen that the decree has been passed in 2007 and the execution petition has been filed in 2019. The DH has not questioned the position of JD no.1 in the original suit, proceedings arising out of the suit and the present execution petition at any stage and for the first time has raised this issue by way of present application in hand. It may be further seen that once the status of the parties has been admitted in the Decree Court, the DH cannot take a different stand before the Execution Court. It may be further seen that DH has only picked the part of the WS that suits him. Once the position of a party has been confirmed by the Hon'ble High Court as well as the Hon'ble Supreme Court of India, DH cannot challenge it not in Execution Court. Further it is a matter of fact that 24% share of the property belongs to JD no.2 and JD no.1 is the 99% shareholder of the JD no.2 company. The Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.12 of 13 shareholding of the DH company is right now in dispute and is the subject matter of 5 suits in the Hon'ble High Court wherein the JD no.1 is also a party seeking shareholding in DH share of the property and till the said 5 suits are decided the shareholding of the share of DH in the property cannot be decided.
22. Since the principle of Rule 10 of Order 1 C.P.C. is to save the honest and bona fide party from being non suited on a technical ground. It is also settled proposition of law that this section should be interpreted liberally and widely and should not be restricted to the parties merely to participate the proceeding to all the persons necessary for complete adjudication should be made parties. It is the duty of the court to see parties are properly arrayed and if it has not been done, therefore, mistake of the party for voidable of the implicit all the proceeding which is also one of the object of Order I Rule 10 CPC.
23. Also in the case of Indian Associates Vs Shivender Bahadur Singh AIR 2003 DEL 292 (295) (DB), it has been held that in the testamentary proceeding a person or legal entity who has interest in the suit can be permitted to be intervened/impleaded.
24. So far as the judgment as relied upon by Ld. Counsel for the DH i.e. Rahul S. Shah Vs. Jitender Kumar Gandhi, though the aforesaid case laws hold the correct proposition of law, but distinguished from the facts and circumstances of the case and therefore, judgment do not help the decree holder.
Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.13 of 13
25. In view of the aforesaid discussion, the JD No.1 has been able to demonstrate that he has a direct beneficiary/interest in the subject matter of suit and that such interest would be effected directly by the out come of the decision. Therefore, the present application under Order 1 Rule 10 CPC is dismissed. Application is disposed of accordingly.
Digitally signed Lalit by Lalit Kumar
Date:
Kumar 2021.07.26
17:06:03 +0530
Pronounced in the open Court (LALIT KUMAR)
on this 26th July, 2021. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
Ex. 29/19 CNA Vs. Janak Datwani & Anr Dated 26.07.2021 Page no.14 of 13