Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 16 July, 2019
nd
Pronounced on: 02 September, 2019
+ CM(M) 93/2018
MOHINDER JEET SINGH ..... Petitioner
Through: Mr.Faheem Shah, Advocate.
versus
BMW INDIA PVT LTD & ORS ..... Respondents
Through: Mr.Aditya V.Singh, Advocate for R-1.
%
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
J U D G M E N T
1. This petition under Article 227 of the Constitution is filed by
the plaintiff in CS No. 7860/2016, challenging an order dated
21.09.2017, passed by the ADJ-06 (South East), Saket Courts, New
Delhi, whereby the Trial Court has deleted the defendants no. 4 and 5
(being the respondents no. 1 and 2 herein) from the array of parties in
the suit.
2. The plaintiff filed the suit on 24.12.2014 with regard to
allegation of certain defects in a second-hand car (BMW 320D, 2011
model, bearing registration number DL3C AM 7007) purchased by
him on 12.03.2014. He sought recovery of a sum of ₹19,80,000/- and
CM(M) 93/2018 Page 1 of 14
interest thereupon. The plaintiff arrayed six parties as defendants in
the suit: -
“1. Infinity Cars
Through its Partner
At A-14, Kailash Colony,
New Delhi-110048
2. M/s Look East Nirman Len
(through its Proprietor / Partner)
At E-49, Ground Floor, G.K.,
Part-I, New Delhi-1100048
3. ICICI Lombard General Insurance Company Ltd.
At Plot No-18, Block-K,
3 CS Cinema, Lajpat Nagar-II ,
New Delhi - 110024
Also at:
ICICI Bank Towers,
Bandra-Kurla Complex,
Mumbai-400051
4. BMW India Pvt. Ltd.
At Tower B, 7th Floor, Building No. 8
DLF Cyber City, Phase-II, Gurgaon,
Haryana-122002
5. M/s Deutsche MotorenPvt. Ltd.
At H5/B-1, Mohan Cooperative Indl. Estate,
Badarpur, Mathura Road,
New Delhi 110044
6. M/s. Bird Automotive Pvt. Ltd.
4 IDC M.G. Road,
Opp. Sector 14, Gurgaon – 122001”
CM(M) 93/2018 Page 2 of 14
3. It is discernible from the plaint that the plaintiff had purchased
the car from defendant no. 1, which is a dealer in second-hand cars.
Defendant no. 2 is the previous owner of the car purchased by the
plaintiff. Defendant no. 3 is the insurance company with which the car
was insured, which had repudiated the plaintiff's claim under the
insurance policy. Defendant no. 4 is the manufacturer of the car, and
defendant no. 5 is its authorised dealer. Defendant no. 6 is the agency
which is alleged to have inspected the car prior to its purchase by the
plaintiff.
4. The allegation of the plaintiff is that on 19.06.2014, within three
months of purchase of the car by him, the car started emitting smoke
and burnt down on starting the ignition. The plaintiff registered an FIR
and claimed indemnity from defendant no. 4, the failure of which led
to the institution of the suit.
5. The defendants no. 4 and 5 filed their written statements to the
suit on 14.05.2015 and 16.04.2015 respectively, and also made
applications for deletion of their names from the array of parties under
Order I Rule 10 of the Code of Civil Procedure, 1908 (“CPC”). The
defendant no. 4 has sought deletion of its name on the ground that the
suit was one for a claim arising out of an insurance policy. Although
the defendant no. 4 did not dispute its status as the manufacturer of the
car in question, it contended that the warranty having expired even
prior to the purchase of the car by the plaintiff, the plaintiff had failed
to disclose a cause of action against it. The application of defendant
no. 5 is predicated on the submission that the inspection alleged to
have been carried out by it was not supported by evidence.
CM(M) 93/2018 Page 3 of 14
6. The plaintiff reiterated the relevant contents of the plaint in
opposition to the applications filed by the defendants no. 4 and 5. As
against defendant no. 4, the reply to the application reiterates that the
cause of action arose out of a manufacturing defect in the car. As
against defendant no. 5, the plaintiff has emphasised that the car was
inspected by the said defendant prior to its purchase by the plaintiff,
and has referred to an invoice raised by the defendant no. 5 in this
regard.
7. By the impugned order, the Trial Court allowed the applications
with the following reasoning: -
“Admittedly, vehicle was purchased by the defendant no.
1 on 12.03.2014. From the record it is also transpired
that initially the vehicle was purchased by defendant no.
1 on 27.07.2011 which is the date mentioned on the RC of
the Vehicle. During the course of argument, learned
counsel for plaintiff has failed to point out any piece of
evidence to show that the vehicle was got inspected from
defendant no. 5 before its purchase from defendant no. 1.
Except the averment in para 3 of the plaint there is no
document on record to this effect. Even there is no date of
alleged inspection mentioned in the plaint when the
vehicle was got inspected. Admittedly, the fire took place
on 19.06.2014. During the course of argument, learned
counsel for plaintiff to substantiate his submissions
drawn the attention to the court to the news paper cutting
attached with the reply filed by plaintiff to both
applications. This court is of view that news paper cutting
is not a piece of evidence. Moreover, record speaks that
there is no report of the expert to show the cause of fire in
the vehicle. In these circumstances, it can not be
presumed without any documentary evidence that fire
took place due to mechanical/manufacture defect in the
vehicle, since, there is no document to this effect. With
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these observations this court is of view that both
applications are liable to be allowed. Hence, defendant
no. 4 and 5 are deleted from the array of defendant. Both
the applications are disposed off accordingly”
8. While issuing notice in the present petition to respondents no. 1
and 2, this Court, by an order dated 22.01.2018, had stayed further
proceedings in the suit.
9. I have heard learned counsel for the petitioner (plaintiff in the
suit) and respondent no. 1 (defendant no. 4 in the suit). Although
respondent no. 2 (defendant no. 5 in the suit) had entered appearance
in the proceedings, it was not represented on the date of hearing.
Respondent no. 2 has also not availed of the opportunity of filing
written submissions granted by the order dated 16.07.2019, while
reserving judgment in the petition.
10. Order I Rule 10 of the CPC deals with addition and deletion of
parties to suit. It provides as follows:-
“10. Suit in name of wrong plaintiff
(1) Where a suit has been instituted in the name of
the wrong person as plaintiff or where it is doubtful
whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if
satisfied that the suit has been instituted through a bona
fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do,
order any other person to be substituted or added as
plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties- The Court
may at any stage of the proceedings, either upon or
without the application of either party, and on such
terms as may appear to the Court to be just, order that
CM(M) 93/2018 Page 5 of 14
the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name
of any person who ought to have been joinded, whether
as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle
all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a plaintiff
under any disability without his consent.
(4) Where defendant added, plaint to be amended-
Where a defendant is added, the plaint shall, unless the
Court otherwise directs, be amended in such manner as
may be necessary, and amended copies of the summons
and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation
Act, 1877 (15 of 1877), section 22, the proceedings as
against any person added as defendant shall be deemed
to have begun only on the service of the summons.”
11. As far as defendants no. 4 and 5 are concerned, the following
extracts of the plaint inter alia contain allegations against them:
“1. That the Plaintiff is the bonafide owner of a Vehicle
of the Make BMW 320D 2011 Model, having registration
number DL 3C AM 7007 Chasis No. WBA PP
17090NN33714, Engine No. 74707715. The Defendant
No. 4 is manufacturer of the BMW cars and claims
itself to be one of the luxurious brands of cars dealing
in world’s finest Automobiles having a high repute in
providing cars with extreme comfort, luxury and safety.
The BMW cars are high end costly cars and it is
expected that such cars are manufactured with state of
CM(M) 93/2018 Page 6 of 14
art technologies whereby there is no scope of any kind of
malfunctioning or even remote technical defect. It is
represented by defendant No. 4 that the life of the
engine and other technical parts of the car is minimum
five years or 200000 kilometers, whichever is early. It is
stated that generally the dealers offer one year/two
year/three year warranty/guaranty or any extended
warranty/guaranty however, even in absence of any
specific contract of warranty/guaranty, the said vehicles
have inherent capability to run without any hassle or
technical defect for the said period of five years / 200000
kilometers, as mentioned above. It may be relevant to
mention that existence or absence of any specific
contract of warranty/guaranty does not make any
difference as the liability of the manufacturer to supply
a defect free vehicle is absolute for the minimum
expected life of the vehicle which the defendant No. 4
represents in respect of BMW vehicles as five years /
200000 kilometers.
xxxx xxxx xxxx
3. That the plaintiff was looking for a second hand car
and approached defendant No. 1 for the said purpose.
The defendant No. 1 projected a rosy picture about its
dealings and induced the plaintiff to purchase the car of
BMW make i.e. the car in question. The defendant No. 1
represented that it has duly inspected the car and the
same is defect free and genuine vehicle. In order to prove
its point, the defendant No. 1 sent his driver along with
the plaintiff to the workshop of defendant No. 5 where
the inspection of vehicle was carried out in presence of
the plaintiff and a scanned report was provided to the
plaintiff. It was represented by defendant No. 5 that the
said car has no technical/manufacturing defect and the
same was as good as new car and the plaintiff can
purchase the same.
xxxx xxxx xxxx
CM(M) 93/2018 Page 7 of 14
5. That based on the inducements and representations
given by defendant No. 1, 2, 4 & 5, the plaintiff
purchased the car in question ….
xxxx xxxx xxxx
10. That thereafter the intimation of the aforesaid
incident was given to the defendant. The defendant No. 4
appointed defendant No. 6 to examine the matter and
compensate the plaintiff. The plaintiff repeatedly
requested the defendants to compensate for the damages
suffered by him for reasons solely attributable to the
defendants, however, they did not pay any heed to it and
kept delaying it and later on clearly refused to
compensate the Plaintiff and no such action was taken by
them to indemnify the plaintiff for the losses which had
occurred only on account of serious manufacturing
defects in the vehicle.
11. That the vehicle manufactured by Defendant No. 4
had inherent defects due to which the plaintiff suffered
extreme harassment and agony and his nephew and
driver suffered trauma after having a narrow escape.
The hard earned money of the plaintiff in buying the
aforesaid luxury car, believing the assurances given by
the defendants that it did not have any defect in
manufacturing have been wasted and the defendants are
refusing to pay for the damages.
xxxx xxxx xxxx
13. That the defendants have casually treated the entire
incident. The plaintiff approached defendants No. 4 & 6
who did not take any step to indemnify the plaintiff. They
casually shifted the liability by stating that the insurer
will pay the claim. It is stated that the vehicle suffered
such untoward incident only because it had
manufacturing defect, else there was no reason that the
vehicle would catch fire in normal running condition. The
defendants No.4 & 6 ought to have admitted the liability
CM(M) 93/2018 Page 8 of 14
and indemnified the plaintiff independent of the insurance
company.
xxxx xxxx xxxx
15. That the defendants are jointly and severally liable
to pay damages of Rs.18,30,000/- to the plaintiff plus
interest at the rate of 18% per annum from the date of the
aforesaid incident to the plaintiff till payment. The
plaintiff hereby restricts the claim of interest from the
date of the present suit. Besides, the defendants are also
liable to compensate the plaintiff towards the mental
agony and harassment which the plaintiff and his family
faced due to the defendants. Although no amount of
money can compensate for the trauma suffered by the
plaintiff and his family however the plaintiff is restricting
the claim to the tune of Rs.1,50,000/- to be paid by the
defendants jointly and severally.
16. That the car suffered fire due to a technical defect
which could have been fatal. The defendant No. l is
liable as the car was purchased on his representation and
the defendant No. 1 gave oral guaranty of one year that
the car will remain defect free. The defendant No. 2 is
also liable being the previous owner and having
represented that the car was defect free. The defendant
No. 3 is the insurer and is liable to indemnify the
plaintiff. It is submitted that the defendant No. 3 has
rejected the claim of the plaintiff on the flimsy grounds.
The defendant. No. 4 is the manufacturer and was duty
bound to indemnify the plaintiff for the loss to the
vehicle on account of manufacturing defect. It is stated
that the vehicle in normal running condition cannot catch
fire unless there is inherent serious manufacturing
defects. The defendant No.5 is liable being the
authorized dealer and also having given a certificate
that the vehicle is defect free. The defendant No. 6 is
liable as it conducted necessary inspection and
fraudulently avoided to give report regarding
manufacturing defect in the vehicle. The car in question
CM(M) 93/2018 Page 9 of 14
is still in possession of defendant No.6. The defendants
are jointly and severally liable to indemnify the plaintiff
for the losses, as mentioned above."
(Emphasis Supplied)
12. In general, it is for the plaintiff in a suit to decide against whom
it wishes to proceed [See Mumbai International Airport (P) Ltd . vs.
Regency Convention Centre & Hotels (P) Ltd. & Ors. (2010) 7 SCC
417, paragraph 13]. The impleadment of a party can be on the basis
that it is a necessary or a proper party to the proceedings. A necessary
party is one against whom the plaintiff seeks relief or in whose
absence an effective decree cannot be passed. A proper party is one
against whom relief may not be sought but whose presence is essential
for the determination of the questions involved in the suit. In Mumbai
International Airport (supra), the Supreme Court has explained the
distinction, thus: -
“ 15. A “necessary party” is a person who ought to have
been joined as a party and in whose absence no effective
decree could be passed at all by the court. If a
“necessary party” is not impleaded, the suit itself is
liable to be dismissed. A “proper party” is a party who,
though not a necessary party, is a person whose presence
would enable the court to completely, effectively and
adequately adjudicate upon all matters in dispute in the
suit, though he need not be a person in favour of or
against whom the decree is to be made. If a person is not
found to be a proper or necessary party, the court has no
jurisdiction to implead him, against the wishes of the
plaintiff. The fact that a person is likely to secure a
right/interest in a suit property, after the suit is decided
against the plaintiff, will not make such person a
necessary party or a proper party to the suit for specific
performance. ”
CM(M) 93/2018 Page 10 of 14
13. The deletion of a party as a defendant in a suit is therefore
possible only upon arriving at a determination that the party is neither
a necessary nor a proper party to the suit.
14. The allegations contained in the plaint in the present case must
be analysed in the context of these principles. The relief sought in the
plaint is for a decree against “the defendants, jointly and severally”.
To this extent, it is clear that the plaintiff has sought relief against the
defendants no. 4 and 5 as well. The question then is whether he has
disclosed a cause of action against the said defendants, entitling him to
proceed against them.
15. As far as the defendant no. 4 is concerned, the plaint makes out
a case of a manufacturing defect which led to the fire in the car. The
defendant no.4 does not deny the fact that it has manufactured the car,
but disputes liability on the ground that the warranty had expired.
There is a categorical assertion in the plaint that the car was inspected
by defendant no.5, and a report was provided to the plaintiff. In its
reply to the application filed by the defendant no.5, the plaintiff has
also averred that the defendant no.5 had raised an invoice on him for
this purpose. In this context, the analysis of the plaint in the impugned
order is unsatisfactory. The Trial Court appears to have proceeded
primarily on the basis that the plaintiff had failed to adduce any
documentary evidence that the vehicle suffered from a manufacturing
defect, and that there was no document in support of the plaintiff’s
case of an inspection by defendant no.5. The analysis of the evidence
by the Trial Court was unwarranted at this stage of the suit, and is a
matter which ought to have been reserved for trial. In the light of the
CM(M) 93/2018 Page 11 of 14
aforesaid allegations in the plaint, the present case was not one in
which the plaintiff had failed to plead a cause of action against
defendant no. 4 and 5
16. In the written submissions filed on behalf of respondent no.1,
two judgments have been cited. In Ramesh Hirachand Kundanmal vs .
Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524,
the Supreme Court held that a person cannot be impleaded as a party
only on the basis that it has relevant evidence. The Court has
formulated the test, thus: -
" 14. It cannot be said that the main object of the rule is
to prevent multiplicity of actions though it may
incidentally have that effect. But that appears to be a
desirable consequence of the rule rather than its main
objective. The person to be joined must be one whose
presence is necessary as a party. What makes a person a
necessary party is not merely that he has relevant
evidence to give on some of the questions involved; that
would only make him a necessary witness. It is not merely
that he has an interest in the correct solution of some
question involved and has thought of relevant arguments
to advance. The only reason which makes it necessary to
make a person a party to an action is so that he should be
bound by the result of the action and the question to be
settled, therefore, must be a question in the action which
cannot be effectually and completely settled unless he is a
party. The line has been drawn on a wider construction
of the rule between the direct interest or the legal interest
and commercial interest. It is, therefore, necessary that
the person must be directly or legally interested in the
action in the answer, i.e., he can say that the litigation
may lead to a result which will affect him legally that is
by curtailing his legal rights. It is difficult to say that the
rule contemplates joining as a defendant a person whose
only object is to prosecute his own cause of action.
CM(M) 93/2018 Page 12 of 14
Similar provision was considered in Amon v. Raphael
Tuck & Sons Ltd. [(1956) 1 All ER 273 : (1956) 1 QB
357] , wherein after quoting the observations of Wynn-
Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of
England [(1950) 2 All ER 605, 611] , that their true test
lies not so much in an analysis of what are the
constituents of the applicants' rights, but rather in what
would be the result on the subject matter of the action if
those rights could be established, Devlin, J. has stated:
“The test is „May the order for which the
plaintiff is asking directly affect the intervener
in the enjoyment of his legal rights‟.”"
It is clear from the facts of the said case that the plaintiff had not
sought any relief against the party seeking deletion. In contrast, in the
present case, the plaintiff had sought a decree against defendants no.
4 and 5 by virtue of which they are necessary parties to the suit,
subject only to the disclosure of a cause of action against them. In
Mitsubishi Electric India Pvt. Ltd . vs. Anup Mittal & Ors . 2015 (220)
DLT 436, this Court reiterated the principles laid down by the Court
of the Judicial Commissioner, Goa, Daman and Diu in Gonsalo De
Filomena Luis vs. Inacio Piedade Hildeberte Fernandes & Ors. AIR
1977 GDD 4. The said judgment deals with a case where parties were
sought to be added to the suit without any relief being claimed against
them. Therefore, it is also not applicable to the present case when the
plaintiff has sought relief against the defendants seeking deletion, in
addition to the other defendants.
17. In the aforesaid circumstances, the petitioner has made out a
case for interference with the impugned order, which is set aside. The
CM(M) 93/2018 Page 13 of 14
defendants no. 4 and 5 are restored to their original positions in the
suit. However, it is made clear that in the event the said defendants are
ultimately not found liable to the plaintiff, they will be entitled to seek
an appropriate order of costs in their favour.
18. The petition is allowed in the terms aforesaid. There will be no
order as to costs.
PRATEEK JALAN, J.
SEPTEMBER 02, 2019 /s
CM(M) 93/2018 Page 14 of 14