IN THE COURT OF SH.________________; LD. DISTRICT JUDGE; (COMMERCIAL COURT); _______ DIST., XXXXX COURT, DELHI.

CS COMM. NO. __ OF 20___.

IN THE MATTER OF: -

XXXXXXXXXXX                                                          : PLAINTIFF

VERSUS

XXXXXXXXX FINANCIAL SERVICES

(INDIA) LTD. & ORS.                                        : DEFENDANTS

N.D.O.H.: 02.02.2024

INDEX

APPLICANT/DEFENDANT NO.3

DELHI

DATED               THROUGH

XXXXXXXXXX

(ADVOCATE)

IN THE COURT OF SH.________________; LD. DISTRICT JUDGE; (COMMERCIAL COURT); _______ DIST., XXXXX COURT, DELHI.

CS COMM. NO. __ OF 20___.

IN THE MATTER OF: -

XXXXXXXXXXX                                                          : PLAINTIFF

VERSUS

XXXXXXXXX FINANCIAL SERVICES

(INDIA) LTD. & ORS.                                        : DEFENDANTS

N.D.O.H.: 02.02.2024

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 THE DEFENDANT NO.1(ii) AND 3 FROM THE ARRAY OF PARTIES.

MOST RESPECTFULLY SHOWETH :-

1.       That the Plaintiff has been filed the aforesaid commercial suit for recovery against the Defendants before this Hon’ble Court as the same is false and frivolous in nature and same is pending for adjudication for 02.02.2024. That the present application has been filed by the applicant / Defendant no. 1(ii) & 3 seeking her deletion from the array of parties/Defendants.

2.       That the present suit at hand involves the amount of the Plaintiff which she so invested in the Defendant no.1 Company. It is imperative to bring to the attention certain factual nuances that 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 Defendants, The Defendant 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 primarily a result of her marital relationship with Defendant no.2. Defendant no.3, in fact, lives separately from the Defendant no.2 due to an estranged relationship, and her directorial role in the company is, by her own admission, perfunctory.

4.       That the Defendant no.3 lacks any meaningful participation in the company's operational and decision-making processes. 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, cognizant of this familial discord, has sought to capitalize on the strained relationship by including Defendant no.3 as a party to the suit.

5.       That in contrast, the primary actors in the transaction, specifically Defendant no.2 and 4, actively managed the company's affairs and executed the investment, agreement, documentation with the Plaintiff. To rectify the situation and expedite resolution, an amicable settlement has been reached between the Plaintiff and the Defendant no.2 and 4. This settlement agreement expressly acknowledges their liability for the repayment of the invested amount, and in furtherance of this agreement, post-dated cheques have been issued to the Plaintiff by the Defendant no.2 and 4 and the matter was settled between the parties.

6.       That in the captioned suit proceedings, the said Plaintiff (having malafide and ulterior motives) have included the Defendant no. 3, under the array of parties as Defendants, however, in reality, the said Defendant no.3 is neither relevant party to the captioned suit filed by the Plaintiff, nor the said Defendant no.3 has been a signatory party to the transaction which took place between the Defendant 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 Defendant in the captioned proceedings with the sole purpose of harassing the said Defendant.

7.       That it is pertinent to mention neither in the suit filed by the said Plaintiff there is any statement made to the effect of as to how and why the Defendant no. 3 is relevant party to the captioned suit proceedings, nor any of the documents filed by the Plaintiff along with its plaint are able to substantiate/ show/ prove the role/ involvement of the Defendant no. 3 in the transaction between the Plaintiff, rest of the Defendants. That there is not even a whisper of any default being committed by the said Defendant no. 3.

8.       That (without prejudice to the rights of the Defendant) it is an admitted factum by the Plaintiff itself stated in para 7 that the matter has been settled between the Plaintiff and Defendant no.4 in respect to the said transaction and Defendant no.4 on behalf of the company issued the PDC cheque to the Plaintiff on 11.01.2019, hence, neither the Defendant no. 3 is relevant party to the captioned proceedings, nor she have (in any manner whatsoever) advanced any personal liability/ assurance/ guarantee whatsoever either towards the Plaintiff or in relation to the transaction between the Plaintiff and Defendant no.1, 2 and 4, therefore, it is incomprehensible as to why the Defendant no. 3 has been included under the array of Defendant. That no reliefs whatsoever can be claimed by the Plaintiff from the Defendant no. 3.

9.       That merely being a witness to the agreement signed between the parties will not lead to the said Defendant being a relevant party to the present suit, similarly, merely being a director to/in one of the companies which had invested by the Claimant also does not make the Defendant no. 3 either a relevant party to the captioned transaction or personally accountable/ responsible towards the profit being availed by the said company itself. That (without prejudice to the rights of the Defendant no.3) it is stated that the Plaintiff has itself claimed that the investment in question was availed by the Defendant no.1, 2 and 4 only, therefore, the Defendant no. 3 is not relevant parties to the captioned suit filed by the Plaintiff, and no relief whatsoever can be claimed from the said Defendant no.3.

10.     That in lieu of the above, the Defendant no. 3 is not relevant parties to the captioned suit filed by the Plaintiff, and is to be deleted from the array of parties/Defendants. Reliance is also placed upon Order I Rule 2 of the CPC. That neither the said Defendant no.3 was a signatory party to any of the transaction which took place between the Defendant no. 1, 2 and 4 with the Plaintiff, nor any personal assurance/ liability/ guarantee of any manner whatsoever was/were ever advanced by the said Defendant no. 3, hence, neither any order against the said Defendant no. 3 can be passed nor any relief as claimed by the Plaintiff against the said Defendant no. 3 can be decreed.

11.     That neither the Defendant no. 3 is liable in any manner whatsoever towards the Plaintiff nor the Plaintiff has any nexus/ 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/responsible for any investment being done by the Plaintiff in the Defendant no.1 Company.

12.     In light of the aforementioned circumstances, in lieu of the above, the Defendant no. 3 is to be deleted from the array of parties, and no prejudice shall be caused to the claim of the Plaintiff.

13.     The present application being bonafide in nature has been filed at the earliest stage, and there is no delay of any manner whatsoever.

P R A Y E R :-

In view of the facts and circumstances made above it is therefore respectfully prayed that this Hon’ble Court may kindly allow the present application and may kindly remove / delete the name of the Defendant no. 1(ii) and 3 from the array of parties, as not being relevant party to the captioned suit proceedings filed by the Plaintiff, in the interest of justice.

Any other and further relief which this Hon’ble Court deem fit and necessary in the circumstances explained above, may also be passed in favour of the Applicant.

APPLICANT/DEFENDANT NO.3

DELHI

DATED               THROUGH

XXXXXX

 (ADVOCATE)

IN THE COURT OF SH.________________; LD. DISTRICT JUDGE; (COMMERCIAL COURT); _______ DIST., XXXXX COURT, DELHI.

CS COMM. NO. __ OF 20___.

IN THE MATTER OF: -

XXXXXXXXXXX                                                          : PLAINTIFF

VERSUS

XXXXXXXXX FINANCIAL SERVICES

(INDIA) LTD. & ORS.                                        : DEFENDANTS

N.D.O.H.: 02.02.2024

AFFIDAVIT

Affidavit of Mrs. XXXXXXW/o Sh. _______________R/o ___________________________Delhi-1100__., do hereby solemnly affirm and state as under:-

1.                 That the deponent is the Defendant no.3 in the above noted case and well conversant with the facts of the case and competent to swear the present affidavit.

2.                 That the contents of above accompanying application under Order 1 Rule 10(2) r/w Section 151 of CPC has been drafted by my counsel under my instructions and the contents of the same are true and correct to my knowledge and nothing material has been concealed.

DEPONENT

VERIFICATION:

Verified at New Delhi on ___ this day January, 2024 that the facts stated in the above affidavit are true to my knowledge. No part of the same is false and nothing material has been concealed. 

DEPONENT