The plaintiff's right to choose the parties against whom to institute a suit is subject to the provisions of Order I Rule 10(2) of the CPC, which grants the court discretion to add or strike out parties as necessary or proper.

Hima Kohli, J.

I.A.No.8280/2013 (by D-3) and I.A.No.8281/2013 (by D-1) both u/O R-I R-10 CPC for deletion of their name from the array of defendants)

1. The present applications have been filed by the defendants No.1 & 3, praying inter alia for deletion of their names from the array of defendants on the ground of mis-joinder of parties.

2. The plaintiffs have instituted the present suit against three defendants for recovery of a sum of Rs. 97,20,000/- with interest, on a joint and several basis. It is the case of the plaintiffs/companies that Shri Praveen Kumar Jain, Director of the defendants No.1 & 2/Company had approached them through their Directors, proposing to broker a deal between the plaintiffs No.1 & 2 and the defendant No.3/company in respect of an immovable property situated at Hargovind Enclave, New Delhi. It has been averred in the plaint that the total sale consideration of the aforesaid property was agreed at Rs.6.00 crores and the plaintiffs had deposited a sum of Rs.2.00 crores in instalments in the accounts of all the three defendants towards the earnest money and it was further agreed that the balance amount will be paid at the time of execution of the sale deed in favour of the plaintiffs.

3. It has been further averred in the plaint that after receiving a sum of Rs.2.00 crores from the plaintiffs as part sale consideration, the defendant No.3/company had proceeded to sell the subject premises to a third party behind their back and when they had approached Shri Praveen Kumar Jain, Director of the defendants No.1 & 2/Company for refund of the amount paid by them, they were extended threats. Later on, Shri Shisher Aggarwal, Director of the defendant No.3/company had returned a sum of Rs.60.00 lacs to the plaintiffs. Shri Praveen Kumar Jain, Director of the Defendants No.1 & 2/Companies had returned a sum of Rs.30.00 lacs to the plaintiffs followed by a sum of Rs.20.00 lacs received from the account of the defendant No.1/Company, totalling to Rs.1.10 crore, thus leaving an outstanding amount of Rs.90.00 lacs, which, as per the plaintiffs, is jointly and severally payable by all the defendants.

4. Mr. Gupta, learned counsel for the defendants No.1 & 3 states that it is the stand of his clients that the amounts received by the defendants No.1 & 3 have been returned to the plaintiffs and therefore, the suit filed for recovery of Rs.90.00 lacs from the defendants jointly and severally is not maintainable vis-a-vis defendants No.1 & 3/companies and nor is the presence of the said defendants necessary to effectively and finally adjudicate the disputes raised by the plaintiffs in this suit.

5. Learned counsel for the defendants No.1 & 3 submits that a perusal of the averments made in the present applications would reveal that the defendants No.1 & 3 have disputed the averments made in the plaint and asserted that there is no privity of contract between them and the plaintiffs and further that the defendant No.3/Company has already refunded the amounts received by it from the plaintiffs.

6. The aforesaid submissions are however rebutted by the learned counsel for the plaintiffs, who submits that the plaintiffs have instituted the present suit jointly and severally against all the three defendants for recovery of the suit amount and the averments made by the defendants No.1 & 3 in the present applications can only be established after evidence is led by the parties, and not at this preliminary stage.

7. Before considering the submissions made by the learned counsels for the parties, it is necessary to examine the relevant provision of Order I Rule 10(2) of the CPC that empowers the court to strike out or add parties in a suit, which is extracted hereinbelow for ready reference:

“10. (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 improp