RELIANCE INDUSTRIES LTD Vs. ADARSH PACKERS P LTD

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 'CPC') for vacation of injunction granted by this Court on 24.7.1997 and under Order 1 Rule 10 read with Section 151 CPC 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 S.No. 1322/1997 the payment of any amount as no personal guarantee was ever executed by the defendant No. 2. 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 alongwith 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 v. Union of India.

(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 CPC, 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 to recovery would be applicable and no summary procedure as postulated under Order XXXVII can be invoked against defendant No. 2. Alternatively, Mr. Aggarwal has contended that even otherwise, no prima facie case has been made out for grant of injunction regarding 35, Anand Lok, New Delhi, as nowhere in the plaint it has been pleaded that on which date, to whom and at what place the alleged guarantee was given by defendant No. 2 to the plaintiff. Mr. Aggarwal has contended that it was only for the first time on 29.1.1997 when a notice was issued by the lawyer of the plaintiff, a story of personal guarantee was cooked up. Had there been any guarantee by defendant No. 2, plaintiff would have invoked that guarantee much earlier and not even a single letter to that effect has been written and placed on record by the plaintiff.