Point of Law: Sections 91 of Indian Evidence Act, 1982 reads evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

JUDGMENT :

C. HARI SHANKAR, J.

1. The order dated 1st October 2022, passed by the learned Additional District Judge (“the learned ADJ”) in CSDJ No. 189/2015 (Jai Shree Holidays and Tours Pvt. Ltd. vs. Smt. Prakash Verma) allows an application of Respondent 4, as Defendant 4 in the plaint, under Order I Rule 10 of the CPC, to be deleted from the array of parties.

2. In order to examine the correctness of the impugned order, it is necessary, briefly, to advert to the suit.

The Plaint

3. There were four defendants in the suit, of which we are concerned, in the present case, with Defendant 4, who is Respondent 4 in the present petition. The plaint in the suit, instituted by the petitioner-Jai Shree Holidays and Tours Pvt. Ltd. against the said four respondents sought (i) a money decree for Rs. 11,82,500/- jointly and severally against the respondents and in favour of the petitioner, with pendente lite and future interest and (ii) a decree of permanent injunction restraining Respondents 1 and 2 from creating third party interest in respect of the property situated at S-193 (First Floor), School Block, Shakurpur Delhi (hereinafter referred to as “the suit property”).

4. The plaint alleged thus. Respondent 2 was employed by the petitioner to deal with accounts of the petitioner company. The petitioner came to know, with the passage of time, that Respondent 2 was mismanaging the petitioner‘s account. On being confronted, Respondent 2 initially executed a document on 20th December 2014, admitting guilt and undertaking to return the money allegedly misappropriated by him. He did not, however, adhere to the said undertaking. The petitioner, therefore, lodged a complaint at PS Rani Bagh. Consequent thereupon, the respondents approached the petitioner, seeking to settle matters. Towards this end, Respondent 1, who was the mother of Respondent 2, and Respondent 2 himself, agreed to pay Rs. 9 lakhs and Rs. 5 lakhs respectively, to the petitioner. On the petitioner‘s insistence, a written undertaking to the aforesaid effect was given by Respondent 1 on 5th January 2015, undertaking to pay the aforesaid amount of Rs. 9 lakhs, failing which she undertook to hand over, to the petitioner, the title documents of the suit property. A similar oral undertaking was given by Respondent 2 on 5th January 2015. At the time of execution of the undertaking by Respondent 1 on 5th January 2015, Respondents 3 and 4 are alleged to have been present and to have signed the said undertaking. They are alleged to have stood as guarantors and undertaken to pay the amount in case of default of Respondents 1 and 2.

5. The averments in the plaint, to the extent they seek to implicate Respondent 4, are to be found in sub-para (n) and (q) of Para 4 of the plaint, which, therefore, may be reproduced thus:

“(n) At the time of the said offer made by defendant No. 1 and 2, defendants No. 3 and 4 were also present and they also assured and stood as guarantor for the payment of the amount in case the defendants No. 1 and 2 failed to honour the commitment made by defendants No. 1 and 2.

(q) At the time of execution of the above undertaking by defendant No. 1, the defendant No. 2 to 4 were also present and the said representation was signed by defendants No. 2 to 4. Defendants No. 3 and 4 also assured the plaintiff company that in case the defendants No. 1 and 2 failed to pay the misappropriated amount of Rs. 14,00,000 they stand as guarantor and would pay the amount in case the defendants No. 1 and 2 fail to pay any amount or the balance amount of the unpaid dues.”

6. The plaint further alleged that, despite the above undertaking by Respondents 1 and 2, they did not liquidate the amounts payable to the petitioner and that, despite the petitioner having contacted all the respondents, including Respondents 3 and 4, the amounts remain pending.

7. It is in these circumstances that the suit came to be filed by the petitioner against all the respondents.

Application by Respondent 4 under Order I