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2019 Supreme(Bom) 338
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
MANIDHARI AIR PRODUCTS - Appellant
Versus
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD. - Respondent
Writ Petition No. 1482 of 2017
Decided on : 01-02-2019
M.P. Khajanchi, Adv., S.V. Purohit, Adv.
Headnote:
Civil Procedure Code 1908 - Section 151 - Order I - Rule 10 – Claim of compensation – Condo nation of delay - This application was opposed by the petitioner, inter alia, contending that it had purchased respondent no.2-Company in pursuance of proceedings undertaken by the Maharashtra State Financial Corporation under Section 29 of the State Financial Corporations Act, 1951, (for short, Act of 1951) and that the supply of electricity was disconnected to respondent no.2 much prior to 26-04-2005, when the petitioner purchased property of respondent no.2-Company. It was contended that the electricity dues as against the respondent no.2 were not an encumbrance over the property of respondent no.2 and since the petitioner had applied to respondent no.1 for fresh connection of electricity, which was supplied, there was no basis for respondent no.1 to claim that the petitioner could be added as a defendant in the aforesaid suit – Held, Contention raised on behalf of respondent no.1 that the clarification given by the trial Court in paragraph 17 of its judgment and order sufficiently protected the petitioner, is also not sustainable because it has been held in paragraph 16 of the impugned order that the presence of the petitioner as a defendant would facilitate the Court to answer the controversy with respect to entitlement of respondent no.1. In fact, the trial Court has categorically held that the petitioner was not only a necessary but also a proper party for the purpose of adjudication of the suit filed by respondent no.1. The said findings rendered by the trial Court, when tested on the touchstone of order I Rule 10(2) of the CPC, do not pass muster. The said provision clearly lays down that a party can be added to a proceeding before the Court at any stage, if the Court finds that the presence of such party is necessary to effectively and completely adjudicate or settle all the questions involved in the suit. The only question that needs to be adjudicated and settled in the suit filed by respondent no.1 is, as to whether it is entitled to recover specific amount with interest from respondent no.2 towards electricity dues for a specific period for supply of electricity provided by respondent no.1 to respondent no.2. In the light of the law laid down by the Honble Supreme Court and this Court, that such dues could never be recovered from an auction purchaser like the petitioner who had purchased the property, plant and machinery of respondent no.2 under Section 29 of the Act of 1951 and further that there was no privity of contract between respondent no.1 and the petitioner as regards the said dues, it was clear that the presence of the petitioner was not necessary to effectively and completely adjudicate or settle the question involved in the suit filed by respondent no.1. In fact, since the respondent no.1 is not at all entitled to claim the dues from the petitioner, it cannot be said that the petitioner is either a necessary or a proper party in the suit filed by respondent no.1 against the respondent no.2 – Appeal dismissed
MANISH PITALE, J.
Rule.
2. The question that arises for consideration in the present Writ Petition is as to whether the Court of Civil Judge, Senior Division, Chandrapur (trial Court), was justified in allowing an application moved by respondent no.1 (original plaintiff) for addition of the petitioner as defendant no.2 in a suit for recovery of amount towards electricity dues originally filed by respondent no.1 against respondent no.2 (original defendant no.1).
3. The respondent no.1 filed Special Civil Suit No.29 of 2004, being a suit for recovery of amount of Rs. 6,90,494.18/- with 18% interest from 01-09-2004, against the respondent no.2. The said suit was filed on 30-10-2004. The respondent no.1 (Maharashtra State Electricity Board) had given electric connection to respondent no.2 in pursuance of agreement dated 18-03-2000, with effect from 31-03-2000. It was the case of respondent no.1 that respondent no.2 had not paid electricity dues from July, 2001 onwards, due to which respondent no.1 temporarily disconnected the electric supply to respondent no.1 on 03-09-2001. As the respondent no.2 allegedly failed to pay arrears of electricity dues, on 01-12-2001, respondent no.1 permanently disconnected electric supply to respondent no.2.
4. During the pendency of the suit on 26-08-2013, the respondent no.1 filed application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), to add the petitioner as defendant no.2 in the aforesaid suit. It was stated in the said application that on a Bailiff report dated 06-02-2011 coming on recorded in the aforesaid suit, the respondent no.1 became aware that respondent no.2 was not found on its address for the last 10 years and that respondent no.2 -Company was sold to the petitioner herein. On this basis, it was contended that the petitioner was a necessary and proper party in the suit and that the amount claimed by respondent no.1 was recoverable from the petitioner. This application was opposed by the petitioner, inter alia, contending that it had purchased respondent no.2-Company in pursuance of proceedings undertaken by the Maharashtra State Financial Corporation under Section 29 of the State Financial Corporations Act, 1951, (for short, 'Act of 1951') and that the supply of electricity was disconnected to respondent no.2 much prior to 26-04-2005, when the petitioner purchased property of respondent no.2-Company. It was contended that the electricity dues as against the respondent no.2 were not an encumbrance over the property of respondent no.2 and since the petitioner had applied to respondent no.1 for fresh connection of electricity, which was supplied, there was no basis for respondent no.1 to claim that the petitioner could be added as a defendant in the aforesaid suit.
5. By impugned order dated 18-01-2017, the trial Court allowed the application filed by respondent no.1 and directed that the petitioner be impleaded as defendant in the aforesaid suit. In the impugned order, the trial Court referred to and relied upon clauses of the agreement dated 26-04-2005, by virtue of which the petitioner had purchased the property, plant and machinery of respondent no.2 from the Maharashtra State Financial Corporation in an auction proceeding conducted by the said Corporation under Section 29 of the Act of 1951. It was observed by the trial Court in the impugned order, while allowing the application of respondent no.1, that observations made in the impugned order were not with respect to fixing the liability on the petitioner, but, the application was being allowed because the presence of the petitioner was found necessary to answer the controversy involved in the suit filed by respondent no.1.
6. Mr. M. P. Khajanchi, learned Counsel appearing for the petitioner submitted that the impugned order passed by the trial Court was wholly unsustainable because the liability of electricity dues claimed by respondent no.1 from respondent no.2 in the aforesaid suit
