The presence of the parties is necessary to effectively adjudicate on the real controversy in issue in the proceedings, and findings on merits are not justified while examining an application under Order I Rule 10 of the CPC.

ORDER (Oral)

1. CS (Comm) 51/2020 was instituted by the petitioner as plaintiff against five defendants. Respondents 1 and 2, M/s Viss Incorporation and Mr. Sekhar Balasubramanium, proprietor of Viss Incorporation (hereinafter "Viss") were Defendants 1 and 2 in the suit. By the impugned order dated 22nd December 2021, the learned District Judge (Commercial Court) ("the learned Commercial Court"), has allowed the application of Respondents 1 and 2, preferred under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC) for deletion of their names from the array of parties in the suit.

2. Aggrieved thereby, the petitioner, as the plaintiff in the suit, has approached this Court under Article 227 of the Constitution of India.

3. Quite obviously, the issue of whether Respondents 1 and 2 were necessary parties in the suit would have to be gleaned from the averments in the suit.

4. CS (Comm) 51/2020 sought recovery, from the defendants jointly and severally of USD 103333.28. The plaint averred that the petitioner was engaged in the manufacturing and export of textile made ups. In 2015-2016, it was alleged that Viss the Respondent 1 approached through its proprietor Respondent 2 ("Sekar", hereinafter), pursuant to which Purchase Orders were placed on the petitioner by Respondent 3. Pursuant thereto, according to the plaint, the fabric purchased from Viss was fabricated by the petitioner into cushion covers as per the Purchase Orders issued by Respondent 3. In the process, according to the plaint, the petitioner availed bank loan of Rs.1,00,00,000/-.

5. The plaint further averred that the cushion covers manufactured by the petitioner were approved by Sekar and, thereafter, supplied through Respondent 3 to the US. 13 such shipments were alleged have been made during the period 2nd June 2015 to 7th November 2015, valued at USD 329891.53. Against these shipments, the plaint averred that interim payments were made by the respondents in respect of which the petitioner maintained a running account. According to the plaint, the respondents had made a total payment of US$ 226558.25, leaving an amount of USD 10333.28 outstanding. At the said amount being not liquidated by the respondents despite repeated requests by the petitioner, the petitioner instituted the aforementioned suit.

6. The averment involving Respondents 1 and 2 are to be found in the following passages of the aforementioned suit:

"3. The Defendant No. 1 is a firm running its business at its above mentioned address at 51, (1st Floor), Pratap Nagar, Street No.2, Mayur Vihar Phase-1, Delhi-110091 through its proprietor/authorised representative Mr. Sekar Balasubramaniam (Defendant No. 2) who is resident of G-49, 2nd Floor, Kalkaji, New Delhi 110019. The defendant no. 2 has been known to Mr. Mohit Agrawal, the director of the plaintiff company, for the last several years.

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6. In early financial year 2015-16, the Defendant No. 1 (through the Defendant No.2) approached the plaintiff company and conveyed that they are buying agents in India for the Defendant No. 3 company situated at USA and that the Defendant No. 3 company was looking for a fabricator in India to fabricate large quantities of cushion covers for export.

7. During course of meetings at its office at Mayur Vihar, Delhi, the Defendant No. 1/2 assured that they are buying officials at India for the Defendant No. 3 company situated at USA being run and managed by the Defendant No. 5 who is a US Citizen. The Defendant No. 1/2 conveyed to the officials of the plaintiff company that the Defendant No. 3 company is looking for a fabricator at India to fabricate large quantity of cushion covers and a condition was put before the plaintiff company that the cushion covers must be fabricated by the plaintiff company only from a particular fabric being manufactured by a company namely M/s. Daanishk Incorporation, a textile manufacturing company having its registered office at 16/1550, Mahesh Nagar, Ist Floor, Ichalkaranji,