G.S. Sistani, J (Oral)

I.A. 20680/2012 (Leave to defend by defendant no.1)

I.A. 1989/2013 (Leave to defend by defendant no.2)

I.A. 1944/2013 (Leave to defend by defendant no.3)

1. Plaintiff has filed the present suit under the Provisions of Order 37 of the Code of Civil Procedure for recovery of Rs.7,56,22,030/-. The suit is based on a personal guarantee executed by the defendants No.1 to 4. As per the plaint, the defendants stood as guarantors guaranteeing the payment of amount due and payable by one M/s.R.N. Infra Communications Pvt. Ltd. in respect of an agreement for factoring of receivables dated 19.12.2008 executed between the plaintiff and M/s.R.N. Infra Communications Pvt. Ltd. The plaint further discloses that vide a sanction letter dated 11.12.2008, the plaintiff conveyed to M/s.R.N. Infra Communications Pvt. Ltd. its readiness to provide domestic factoring facilities of Rs.7.50 crores and various documents were executed between the plaintiff and M/s.R.N. Infra Communications Pvt. Ltd. Pursuant to the arrangement between the plaintiff and M/s.R.N. Infra Communications Pvt. Ltd. the defendants executed deeds of guarantees which according to the plaint are independent and unconditional guarantees for payments due to payments to the plaintiff and all amounts due and payable by M/s.R.N. Infra Communications Pvt. Ltd.

2. It is submitted by counsel for the plaintiff that the payments were not made by M/s.R.N. Infra Communications Pvt. Ltd. to the plaintiff, which has led to the filing of the present suit against the defendants, who are guarantors.

3. Mr.Bindra, counsel for the plaintiff has relied upon the terms of the guarantee which are identical in all the guarantees, which have been placed on record. In support of his argument that reading of the guarantees would show that it is an independent document of any agreement between the plaintiff and M/s.R.N. Infra Communications Pvt. Ltd.. The amounts due of M/s R.N. Infra Structure Communications Private Limited were to be paid by the guarantors without any protest or demur, which is evident upon reading of paragraphs, 1, 3, 10 and 11 of the guarantee.

4. By the present applications, the leave is sought by defendants on the ground that the present suit is not maintainable on account of non-joinder of parties, as M/s.R.N. Infra Communications Pvt. Ltd. has not been be impleaded as a party in the present suit.

5. Further, as per the applications for leave to defend, this Court lacks territorial jurisdiction, as the defendant no.1 resides and works for gain at Hyderabad. According to defendant no.1, the guarantee was signed at Hyderabad and thereafter sent to Delhi for the signatures of the M/s.R.N. Infra Communications Pvt. Ltd. Counsel for the defendant no.1 also submits that substantial cause of action has arisen in Hyderabad and merely because the M/s.R.N. Infra Communications Pvt. Ltd. had signed the guarantee at Delhi, this Court would not have jurisdiction to entertain the present suit.

6. In support of her plea that the suit is not maintainable for non-joinder of parties, counsel has relied on Bhim Singh & Ors. Vs. Sukhbir Singh & Ors. reported at 152 (2008) DLT 36 and more particularly on the portions, which is reproduced below:

“In the absence of any necessary party, no effective order or decree be passed. In view of the provisions of Order 1 Rule 9 it is clear that non-joinder of a necessary party would be fatal to the suit. This aspect of the matter has also to be borne in mind. The plaintiff has not been joined necessary parties and has taken the risk by not doing so. In the absence of necessary parties, no effective order or decree can be passed and the plaintiff must bear the consequences of his adventure. Non-joinder of necessary parties in a partition suit is fatal.”

7. The grounds raised by defendant no.1 in the affidavit filed with the application for leave to defend have been reproduced below:

“D. Furthermore, without prejudice to the contention