JUDGMENT

Harpreet Singh Brar, J.

CM-7-FACOM-2023

Prayer in this application is for condonation of delay of 37 days in filing the appeal.

For the reasons mentioned in the application which is supported by the affidavit of Mr. Arun Tandon authorized person of the appellant, the application is allowed and delay of 37 days in filing the appeal is condoned.

FAO-COM-3-2023 (O &M)

The appellant has filed the present appeal against the order dated 29.09.2022 passed by the learned Additional District Judge (Commercial Court), Gurugram, whereby, an application filed by the appellant under Order 1, Rule 10 read with section 151 of Code of Civil Procedure, 1908 (in short 'CPC') seeking its deletion from the array of parties and rejection of the plaint qua the appellant, was dismissed.

Factual Background

2. The facts emanating from the record are that the respondent No.1/plaintiff filed the suit bearing CS No.4/2022 titled as ' M/s INA Energy Private Limited v. M/s Samaarambh Solar Power Pvt. Ltd. and another' seeking recovery of an amount of Rs.1,23,85,527/- from the respondent No.2/defendant No.1 as per the Joint Venture and Service Agreement dated 08.06.2018 executed between the respondents No.1 and 2.

The appellant was impleaded as defendant No.2 in the suit and subsequently on the receipt of the notice, the appellant had appeared and filed an application under Order 1, Rule 10 read with Order 7, Rule 11 of CPC seeking deletion of its name from the array of parties and rejection of the suit qua the appellant. The learned Additional District Judge (Commercial Court), Gurugram, dismissed the application filed by the appellant vide order dated 29.09.2022.

Contentions

3. Learned counsel for the appellant has assailed the order dated 29.09.2022 on the ground that the learned Additional District Judge (Commercial Court), Gurugram, has failed to appreciate that neither there is any agreement between the appellant and respondent No.1 nor is there any privity of contract. Admittedly, the appellant has been arrayed only as a proforma party and no relief has been claimed against the appellant as such, the plaint is liable to be rejected. He further asserts that from the pleadings of the suit filed by respondent No.1, no cause of action arises against the appellant and the suit filed by respondent No.1 against the appellant is not maintainable. Learned counsel for the appellant further asserted that in the order dated 29.09.2022, the learned Additional District Judge (Commercial Court), Gurugram, has failed to appreciate that the appellant is neither a necessary nor a proper party to the suit. Admittedly, the alleged agreement is between the respondents No.1 and 2.

Issue

4. After hearing the learned counsel for the appellant at length and carefully examining the record of the case, we find that the following issue is involved in the present appeal which requires to be adjudicated - Whether a party can be impleaded against whom no relief has been claimed, specially, when the agreement on the basis of which the suit is filed is between respondents No.1 and 2 and the appellant is not privy to the contract?

Analysis

5. The perusal of the order dated 29.09.2022 shows that the above contentions of learned counsel for the appellant had already been dealt with by the learned Additional District Judge (Commercial Court), Gurugram on the touchstone of Order 1, Rule 10 of CPC.

6. Undisputedly, defendant No.1 was solely responsible to respondent No.2-Tata International Limited which got merged with the appellant in the year 2019 for execution and completion of the contract. All the funds which are to be received from Tata International Limited (which