IMPORTANT POINT
Defendant No. 2 is deemed a necessary and proper party for adjudicating the claims raised by the Plaintiff due to the absence of contractual obligation and the need for effective resolution of disputes.

JUDGMENT :

MANMEET PRITAM SINGH ARORA, J:

I.A. 24807/2023 (Application under Order I Rule 10 CPC on behalf of Defendant No. 2 seeking deletion from array of parties)

1. This is an interlocutory application filed by Defendant No. 2, H.P sales India Ltd under Order I Rule 10 of the Code of Civil Procedure, 1908 (‘CPC’) seeking its deletion from the array of parties on the ground that there exists no contractual obligation between the Defendant No. 2 and Plaintiff; and Plaintiff has failed to make out any cause of action to implead Defendant No. 2 as a party in the present suit.

2. The brief facts as set out in the plaint, which are relevant to adjudicate on the application are as follows:-

2.1 Defendant No. 1, is an authorized pan India non-exclusive distributor of high-end printing machines manufactured under the label of Defendant No. 2.

2.2 Plaintiff and Defendant No. 1 entered into a Business Associate Agreement dated 07.09.2009 for the sale of products of Defendant No. 2 in lieu of the Overriding Commission (ORC) paid through Defendant No. 1. The term of the agreement was for a period of one year.

2.3 After the expiry of the period agreed in the Business Associate Agreement dated 07.09.2009, the commercial relationship between the Plaintiff and Defendant No. 1 continued for almost 13 years, without any formal written agreement. It is stated that the commercial terms and conditions during this extended period were settled by Defendant No. 1 in its letters/emails addressed to the Plaintiff.

2.4 It is stated that Plaintiff continued to sell the products of Defendant No. 2 through Defendant No. 1. It is stated that the critical role played by the Plaintiff was at all times under the knowledge of Defendant No. 2 as the said Defendant was duly marked on all e-mails exchanged between the Plaintiff and Defendant No. 1. It is stated that Defendant No. 2 actively participated in the discussions and the sales were completed with the clients with the express consent of Defendant No. 2. It is stated that Defendant No. 2 at all times remained copied in the transaction as the quantum of ORC payable to the Plaintiff was determined by Defendant No. 2.

2.5 It is stated that the products of Defendant No. 2 are high value products and the Plaintiff herein identified potential clients and nurtured the said clients to persuade them to purchase the products of Defendant No. 2. It is stated that the list of potential clients identified by the Plaintiff were sent to Defendant Nos. 1 and 2 from time to time. The said potential client list was updated from time to time and is still valid and has been referred to as Funnel List. It is stated that the Plaintiff is entitled to commission for any sales made to the said clients enlisted in the Funnel List by the Defendants.

2.6 It is stated that Defendant No. 1 through an email dated 21.07.2020 unilaterally terminated its commercial relationship with the Plaintiff. It is stated that, however, on the assurance given by the officials of Defendant No. 2 the Plaintiff continued to work for Defendants thereafter. In this regard, the Plaintiff relies upon e-mails dated 12.03.2021 and 30.08.2021 received from Defendant No. 1.

2.7 It is stated that the dispute has arisen with respect to invoices for ORC raised by the Plaintiff for the sales effected on Plaintiff’s clients i.e., namely Digital Print Hub, Jaipur, and Kuber Digital Studio, Meerut. It is stated that the sales were affected in November and December of 2021 and the Plaintiff is entitled to ORC at 4.5% on the net sale price after deducting service cost and other freebies.

2.8 The plaint has been filed for recovery of Rs. 3.05 crores which includes the aforesaid 4.5% ORC. The plaint inter-alia seeks a permanent and mandatory injunction against the Defendants from using the Funnel List and other proprietary information pertaining to the clients developed by the Plaintiff.

Submissions of Applicant/Defendant No. 2

3. Learned Counsel for the Defendant No. 2 stated that th