TaxTMI 
TaxTMI 
2019 (9) TMI 1615
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Motoren Pvt. 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" 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 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 procee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 capa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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." 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 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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....