Determination of the extent of a business acquisition or merger, which affects liability in a civil suit, is a matter of evidence and trial and cannot be decided at a preliminary stage based solely on documents produced by one party.

NIDHI GUPTA, J.

Present Revision Petition has been filed by the plaintiff under Article 227 of the Constitution of India for setting aside impugned order dated 03.07.2023 (Annexure P-14) passed by the learned Civil Judge (Junior Division), Derabassi in CS-388-2020 vide which application under Order 1 Rule 10(2) CPC filed by the respondents/defendants for deleting their name in the array of respondents/defendants in Civil Suit No.388 of 2020, has been allowed.

Brief facts of the case are that the petitioner/plaintiff is the owner and landlady of the suit premises which had been rented out to the respondent/defendant No.1 vide Lease Agreement dated 14.08.2013 (Annexure P1), at monthly rent of Rs.33,500/- per month for the period from 14.08.2013 till 31.03.2018 along with 5% increase in rent per annum. The respondent no.1 had written a letter dated 01.12.2015 (Annexure P2) to the petitioner tendering two months’ notice of termination of lease with effect from 01.12.2015. Petitioner had accepted the above-said letter of termination and issued Notice dated 03.01.2016 (Annexure P3) to the respondents for payment of rent for the months of December 2015, January 2016 and 10 days of February 2016 after adjusting security amount of Rs.67,000/-. Furthermore, as per letter dated 01.12.2015, respondent No.1 was to vacate the premises on or before 31.01.2016. However, as respondent No.1 failed to do so, the petitioner had again issued Notice dated 11.03.2016 (Annexure P4) in this regard. The petitioner had again sent Legal Notice dated 02.04.2016. Ultimately, petitioner was constrained to approach the learned Rent Controller by way of Rent Petition, which was allowed by the learned Rent Controller, Derabassi vide order dated 19.01.2019 (Annexure P5).

In the meantime, the petitioner discovered that respondent No.1 has merged with respondent/defendant No.2 and is now known by the name of M/s Havells India Limited. Accordingly, to claim arrears of rent, the petitioner had filed the instant Civil Suit No.388 of 2020 dated 07.07.2020 (Annexure P6) for recovery of Rs.16,88,400/- along with interest thereupon. It is in the said Suit that respondent/defendant No.2 moved instant application under Order 1 Rule 10(2) read with Section 151 CPC dated July 2022 (Annexure P7) for deletion of name of the defendant No.2 from the array of defendants. Vide impugned order dated 03.07.2023 (Annexure P14), said application of respondent No.2 has been allowed.

It is inter alia submitted by learned counsel for the petitioner that the ground on which ld. trial Court has allowed the application of respondent No.2 is that the respondent No.2 had bought only “Consumer Durable Business” of the defendant No.1; and that it had not acquired the defendant No.1 in totality; and had not merged with the defendant No.1. Learned counsel for the petitioner contends that the correctness of the said facts as to whether the defendant No.2 has merged with defendant No.1 in totality or has only taken limited acquisition of the defendant No.1, is a fact which can only be proven upon leading of evidence.

It is submitted moreover, the Ld. Trial Court has ignored the fact that warehouse in question was used for storing consumer durables; and admittedly respondent no. 2 only bought consumer durable business of respondent no. 1. Thus, respondent no. 2 is equally responsible for the liabilities of respondent no. 1.

It is reiterated that it is a matter or trial and evidence as to whether the petitioner's case was covered in the business, other than the consumer durables business and the version as propounded by the respondent no. 2 at this stage should not have been taken as gospel truth. The stand taken by the respondent no. 2 and the fact that the respondent no. 1 had not put in appearance only goes to show that both the respondents are avoiding the liability by one means or the other and the passing of such order at initial stage has caused prejudice t