IN THE COURT OF SH. Name of District Judge, LD. DISTRICT JUDGE (COMMERCIAL COURT), Court district number DIST., Court complex name COURT, DELHI.
CS COMM. NO. Commercial suit number OF 20Suit year.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
First defendant company name prefix FINANCIAL SERVICES (INDIA) LTD. & ORS.: DEFENDANTS
N.D.O.H.: Next date of hearing
INDEX
| S. NO. | PARTICULARS | PAGE NO |
|---|
| 1 | APPLICATION FOR AND ON BEHALF OF THE APPLICANT / DEFENDANT NO. 1(ii) AND 3 UNDER ORDER 1 RULE 10(2) R/W SECTION 151 OF CPC FOR DELETION OF THE NAMES OF DEFENDANT NO. 1(ii) AND 3 FROM THE ARRAY OF PARTIES, ALONG WITH AFFIDAVITS. | |
| 2 | COPY OF SETTLEMENT AGREEMENT BETWEEN THE PLAINTIFF AND THE DEFENDANTS. | |
APPLICANT/DEFENDANT NO. 3, DELHI
DATEDTHROUGH
Advocate's name
(ADVOCATE)
IN THE COURT OF SH. Name of District Judge, LD. DISTRICT JUDGE (COMMERCIAL COURT), Court district number DIST., Court complex name COURT, DELHI.
CS COMM. NO. Commercial suit number OF 20Suit year.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
First defendant company name prefix FINANCIAL SERVICES (INDIA) LTD. & ORS.: DEFENDANTS
N.D.O.H.: Next date of hearing
APPLICATION FOR AND ON BEHALF OF THE APPLICANT / DEFENDANT NO. 1(ii) AND 3 UNDER ORDER 1 RULE 10(2) R/W SECTION 151 OF CPC FOR DELETION OF THE NAMES OF DEFENDANT NO. 1(ii) AND 3 FROM THE ARRAY OF PARTIES.
MOST RESPECTFULLY SHOWETH: -
1.That the Plaintiff has filed the aforesaid commercial suit for recovery against the Defendants before this Hon'ble Court, which suit is false and frivolous in nature and is pending adjudication, with the next date of hearing fixed as Next date of hearing. That the present application has been filed by the Applicant / Defendant No. 1(ii) and 3 seeking deletion of her name from the array of parties / Defendants.
2.That the present suit pertains to an amount invested by the Plaintiff in Defendant No. 1 Company. It is imperative to bring to the attention of this Hon'ble Court certain factual aspects which warrant the exclusion of Defendant No. 3 from the present proceedings.
3.That the Plaintiff asserts that the investment was made in the company managed by the Defendants, and that Defendants No. 2 and 3 are husband and wife. However, a comprehensive examination of the familial and corporate dynamics reveals that Defendant No. 3's involvement in the company is nominal and is primarily a consequence of her marital relationship with Defendant No. 2. Defendant No. 3, in fact, lives separately from Defendant No. 2 on account of an estranged relationship, and her directorial role in the company is, by her own admission, perfunctory.
4.That Defendant No. 3 lacks any meaningful participation in the operational and decision-making processes of the company. Defendant No. 3 is not a signatory, possesses no authority to make decisions, and is essentially a titular director at the behest of her husband, i.e., Defendant No. 2 herein. The Plaintiff, being cognizant of this familial discord, has sought to capitalise upon the strained relationship by impleading Defendant No. 3 as a party to the suit.
5.That, in contrast, the primary actors in the transaction, specifically Defendants No. 2 and 4, actively managed the affairs of the company and executed the investment agreement and documentation with the Plaintiff. To rectify the situation and expedite resolution, an amicable settlement has been reached between the Plaintiff on the one hand and Defendants No. 2 and 4 on the other. This settlement agreement expressly acknowledges their liability for repayment of the invested amount, and in furtherance of the said agreement, post-dated cheques have been issued to the Plaintiff by Defendants No. 2 and 4, whereupon the matter was settled between the parties.
6.That in the captioned suit proceedings, the Plaintiff (having malafide and ulterior motives) has included Defendant No. 3 in the array of Defendants, whereas in reality the said Defendant No. 3 is neither a relevant party to the captioned suit filed by the Plaintiff, nor was the said Defendant No. 3 a signatory to the transaction which took place between Defendants No. 1, 2 and 4 and the Plaintiff (in relation to which the captioned commercial suit proceedings have been filed). That the said Defendant No. 3 has been arrayed as a Defendant in the captioned proceedings with the sole purpose of harassing her.
7.That it is pertinent to mention that neither does the suit filed by the said Plaintiff contain any statement as to how and why Defendant No. 3 is a relevant party to the captioned suit proceedings, nor is any of the documents filed by the Plaintiff along with the plaint able to substantiate, show or prove the role or involvement of Defendant No. 3 in the transaction between the Plaintiff and the remaining Defendants. That there is not even a whisper of any default having been committed by the said Defendant No. 3.
8.That (without prejudice to the rights of the Defendant), it is an admitted fact, stated by the Plaintiff herself in paragraph 7, that the matter has been settled between the Plaintiff and Defendant No. 4 in respect of the said transaction, and that Defendant No. 4, on behalf of the company, issued the post-dated cheque to the Plaintiff on Date of issuance of post-dated cheque. Hence, Defendant No. 3 is neither a relevant party to the captioned proceedings, nor has she (in any manner whatsoever) extended any personal liability, assurance or guarantee whatsoever, either towards the Plaintiff or in relation to the transaction between the Plaintiff and Defendants No. 1, 2 and 4. It is therefore incomprehensible as to why Defendant No. 3 has been included in the array of Defendants. That no relief whatsoever can be claimed by the Plaintiff against Defendant No. 3.
9.That merely being a witness to an agreement signed between the parties does not make the said Defendant a relevant party to the present suit; similarly, merely being a director of one of the companies in which the claimant invested does not render Defendant No. 3 either a relevant party to the captioned transaction or personally accountable or responsible for the profits availed by the said company itself. That (without prejudice to the rights of Defendant No. 3), it is stated that the Plaintiff has herself claimed that the investment in question was availed by Defendants No. 1, 2 and 4 only; therefore, Defendant No. 3 is not a relevant party to the captioned suit filed by the Plaintiff, and no relief whatsoever can be claimed against the said Defendant No. 3.
10.That in view of the foregoing, Defendant No. 3 is not a relevant party to the captioned suit filed by the Plaintiff and her name is liable to be deleted from the array of parties / Defendants. Reliance is also placed upon Order I Rule 2 of the CPC. That the said Defendant No. 3 was neither a signatory to any of the transactions which took place between Defendants No. 1, 2 and 4 and the Plaintiff, nor was any personal assurance, liability or guarantee of any manner whatsoever ever extended by the said Defendant No. 3. Hence, neither can any order be passed against the said Defendant No. 3, nor can any relief as claimed by the Plaintiff against the said Defendant No. 3 be decreed.
11.That Defendant No. 3 is not liable in any manner whatsoever towards the Plaintiff, and the Plaintiff has no nexus or contractual arrangement with the said Defendant No. 3. Hence, no relief whatsoever can be sought from and against the said Defendant No. 3. That (without prejudice), the said Defendant No. 3 is neither liable nor accountable or responsible for any investment made by the Plaintiff in Defendant No. 1 Company.
12.In light of the aforesaid facts and circumstances, it is submitted that Defendant no. 3 ought to be deleted from the array of parties, and no prejudice shall be caused to the claim of the Plaintiff by such deletion.
13.The present application, being bona fide in nature, has been filed at the earliest opportunity, and there is no delay of any manner whatsoever in filing the same.
P R A Y E R :-
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and to remove/delete the names of Defendant no. 1(ii) and Defendant no. 3 from the array of parties, as they are not necessary or relevant parties to the captioned suit proceedings filed by the Plaintiff, in the interest of justice.
Any other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances stated above may also be granted in favour of the Applicant.
APPLICANT/DEFENDANT NO.3
DELHI
DATEDTHROUGH
Advocate's name
(ADVOCATE)
IN THE COURT OF SH.Name of District Judge, LD. DISTRICT JUDGE (COMMERCIAL COURT), Court district number DIST., Court complex name COURT, DELHI.
CS COMM. NO. Commercial suit number OF 20Suit year.
IN THE MATTER OF: -
Plaintiff's name: PLAINTIFF
VERSUS
First defendant company name prefix FINANCIAL SERVICES
(INDIA) LTD. & ORS.: DEFENDANTS
N.D.O.H.: Next date of hearing
AFFIDAVIT
Affidavit of Mrs. Deponent's name (Defendant no.3) W/o Sh. Deponent's father's/husband's name, R/o Deponent's address, Delhi-1100Pincode last three digits, do hereby solemnly affirm and state as under:-
1.That the deponent is Defendant no. 3 in the above-noted case, is well conversant with the facts of the case, and is competent to swear the present affidavit.
2.That the contents of the accompanying application under Order 1 Rule 10(2) r/w Section 151 of CPC have been drafted by my counsel under my instructions, and the contents thereof are true and correct to my knowledge; nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:
Verified at New Delhi on Verification date, Month and year of affidavit, that the facts stated in the above affidavit are true and correct to my knowledge; no part thereof is false and nothing material has been concealed therefrom.
DEPONENT