Document Fragment View

Matching Fragments

2. Learned counsel for the Plaintiff on the other hand contends that the Defendant No. 3 is a necessary and proper party. Defendant No. 3 delivered the goods and the delivery was found to be short and thus the cause of action arises against the Defendant No. 3 and hence he cannot be deleted from the array of parties.

3. I have heard learned counsel for the parties.

4. The facts pleaded in the plaint are that the Plaintiff which is a private limited company incorporated under the Companies Act, 1956 undertook the project awarded to it by the Unique Identification Authority of India (UIDAI) for data capture of residents of Delhi and their enrollment process for facilitating the process of issuance of ADHAAR cards by Delhi Government. For the execution of the project the Plaintiff required computer equipments which would adhere to the requirements/guidelines as stipulated and provided by the UIDAI. One of the mandatory requirements in the check list was that the laptops used for the project should be „32 BIT operating system‟ and not „64 BIT operating system.‟ Thus the Plaintiff purchased various computer products/equipments/its peripherals etc. of Defendant Nos. 1 and 2 during the period June, 2011 to September, 2011. The Defendant Nos. 1 and 2 are sister concerns wherein the Defendant No. 1 is involved in selling various electronic/computer products/peripherals relating to the information technology under the mark of Hewlett Packard (HP) and Defendant No. 2, offers/gives finance/funding facility of payment of bills to its customers to facilitate the purchase of computer equipments/products. The Defendant No. 3 is one of the authorized distributor/supplier of the products of HP Company. In September/October, 2011 the Plaintiff approached the Defendant No. 2 for availing of Rs. 1,57,59,012.22 for finance/funding facility for purchase of computer equipments/products/peripherals required by the Plaintiff with specific condition on the Plaintiff by the Defendant No. 2 that it would be mandatory for the Plaintiff to purchase 50% products of Defendant No. 1. The Plaintiff placed orders for purchase of 215 laptops of brand HP to Defendant No. 1 on 3rd October, 2011 which was also financed/funded by the Defendant No. 2. The Plaintiff signed a master rental and finance agreement dated 19th October, 2011 with the Defendant No. 2 along with all other necessary documents annexed with the aforesaid agreement. As mandated by the Defendant No. 2 the Plaintiff also furnished the bank guarantee for a sum of Rs.44,62,125/- and issued 24 post dated cheques of Rs. 7,82,751/- each in favour of the Defendant No. 2. That out of the aforesaid 215 laptops only 127 HP laptops were delivered to the Plaintiff on 28 th October, 2011 by the Defendant No. 3 and the remaining 88 laptops were not delivered at all to the Plaintiff. Further the aforesaid 127 HP laptops were neither in consonance with the specifications of the purchase orders and had 65 Bit operating system installed in them instead of 32 Bit operating system. The Plaintiff vide its email dated 29th October, 2011 apprised the facts to the representative of the Defendant No. 2 Mr. Rohit Kumar and requested him to change all the laptops. The emails were replied by Mr. Rohit Kumar Arora on 31st October, 2011 assuring to resolve the issue by reloading and installing 32 Bit operating system on the said 127 HP laptops. It is further contended that despite assurance the needful was not done and after lot of persuasion 127 laptops were finally picked up by the representative of the Defendant No. 3 on 23rd November, 2011 after an assurance of the representative of the Defendant No. 1 that they shall replace the 127 laptops immediately with new laptops in conformity with the purchase orders. It is contended that since out of 215 laptops only 127 laptops were supplied the Defendant No. 2 did not have the right to invoke the bank guarantee of Rs. 44.62.125/- and/or to encash the post dated cheques. Thus the Plaintiff by the present suit claims damages against the Defendants.

5. It is well settled that for deciding the application under Order VII Rule 11 CPC r/w Order I Rule 10 CPC the averments made in the plaint have to be read by way of demurrer. The only averments in the entire plaint against the Defendant No. 3 is that the Defendant No. 3 is the authorized distributor and supplied the products of HP company, that the Defendant No. 3 delivered to the Plaintiff 127 HP laptops instead of 215 HP laptops, did not deliver the remaining 88 laptops and finally after great persuasion 127 HP laptops were picked up by the representative of the Defendant No. 3 on 23 rd November, 2011. Admittedly there is no privity of contract between the Plaintiff and the Defendant No. 3. Further admittedly the Defendant No. 3 is an agent of Defendant no. 1 Company, its authorized distributor/supplier. It is in the light of these averments it is to be seen whether the Defendant No. 3 is a necessary party or not. Section 230 of the Indian Contract Act (in short „Contract Act‟) provides as under: