RELIANCE INDUSTRIES LIMITED Vs. ADARSH PACKERS PRIVATE LIMITED

JUDGEMENT

(1.) These are applications (IA 8793/97 & IA 8794/97) filed by applicant/ defendant No.2 under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure (in short 'Code of Civil Procedure') for vacation of injunction granted by this Court on 24.7.1997 and under Order 1 Rule 10 read with Section 151 Code of Civil Procedure for deleting the name of defendant No.2.

(2.) Mr.S C Aggarwal, learned counsel appearing for the applicant/defendant No.2, has contended that the transaction was between the plaintiff and defendant Nos.1 and 3 and defendant No.2 cannot be held liable to make the payment of any amount as no personal guarantee was ever executed by the defendant No.2. Mr.Aggarwal has contended that the suit is based on invoices and letters exchanged between the plaintiff and defendant Nos.1 and 3, which are limited companies and as such in the absence of any guarantee held out by the defendant No.2 for payment of any amount, defendant No.2 is neither a proper nor a necessary party. Mr.Aggarwal has further contended that property bearing No.35, Anand Lok, New Delhi is an ancestral property of the defendant No.2 and Mr.Sushil Kumar, the brother of defendant No.2, who has got 50% share in the property. Mr.Aggarwal has also contended that this said property is a residential property owned by the defendant No.2 along with his brother and no injunction in respect of same can be granted by this Court. In support of his contentions, he has cited S C Jain Vs.Union of India AIR 1983 Delhi 367.

(3.) Next argument of learned counsel for the applicant/defendant No.2 canvassed before this Court, was that in terms of sub-rule (2) of Rule 1 of Order XXXVII of the Code of Civil Procedure, the guarantee appearing in sub-rule (2)(b)(iii) has to be read as written guarantee. As there is no written guarantee by defendant No.2, defendant No.2 ought not to have been impleaded as defendant. He has further contended that suit under Order XXXVII will not lie against the defendant No.2. What Mr.Aggarwal has contended is that in such a case it is general provision of law regarding suit for recovery would be applicable and no summary procedure as postulated under Order XXXVII can be invoked against defendant no.2.