SAHIDULLAH MUNSHI, J. - (1.) The Court : This GA 520 of 2017 in connection with C.S. 40 of 2010 filed on behalf of the defendant is for addition of parties, namely, Sricon having its office at Sricon House 25, Pragati Layout, Rajiv Nagar, Wardha Road, Nagpur, 440025 and HSCL-SIPL (JV) (hereinafter referred to as the said JV) having its principal place of business at 5/1 Commisariat Road, Hastings, Kolkata-700022. The case of the defendant in the present application, in short, is that:- a) At all material times the petitioner was and still is engaged in the business of diverse construction activities across India. Petitioner is a Public Sector Undertaking of the Government of India and 100% of its share-holding is vested with the President of India. The petitioner is registered under Companies Act , 1956. b) In furtherance of its business, the petitioner entered into a Memorandum of Understanding dated 14th September, 2004 in short, "the said MOU" with Sricon. c) Pursuant to and in terms of an MOU between the petitioner and Sricon, the petitioner entered into a joint venture agreement for the purpose of participating in and/or submitting bids in respect of a tender quoted by the National Highways Authority of India in short, (NHAI) for the construction of a four-lane highway. d) The joint venture so framed by the petitioner and Sricon in terms of the joint venture agreement, the said JV became a separate and distinct legal entity. The petitioner was the lead partner of the joint venture and had a stake of 51% in the same while Sricon had a stake of 49%. e) At a meeting held on 11th December, 2006 Sricon requested the petitioner for financial assistance for the execution of the project and Sricon agreed to complete the work at another meeting held on 30th September, 2007. It was agreed and/or decided that Sricon is the actual executor of the said project in respect of the said contract and would complete the work thereof. f) Various orders were placed on the plaintiff by the said JV and/or on behalf of the said JV for the purpose of executing for the project.
(2.) According to the petitioner, it did not place any order on the plaintiff in its own capacity and/or for its own use. It is submitted that all orders placed by the petitioner on the plaintiff, were on behalf of the said JV. The said plaintiff supplied certain equipments to the said JV. In pursuance of the aforesaid orders no supplies were made to the petitioner. In the aforesaid background fact it is the case of the defendant/petitioner that since Sricon and H.S.C.L. - S.I.P.L. (J.V.) have direct interest in the suit and orders were placed at their instance, for all practical purpose, they are necessary and for proper parties. The petitioner claimed that the suit cannot be adjudicated at all and in the interest of justice the said Sricon and JV are required to be brought on the file of the present suit as defendants and for such purpose, the present application has been taken out by the defendant to add them as party-defendants. It is further submitted by the learned counsel appearing for the petitioner that the defendant filed written- statement in the instant suit. The issues in the above suit were framed by the Hon'ble Court with the consent of the parties by an order dated 30th November, 2012. Learned counsel for the petitioner has drawn the attention of this Court to the issues framed by this Court where one of the issues is as to whether the suit is defective because of non-joinder of necessary parties. According to the defendant, issue was framed by an order dated 30th November, 2012 by a Hon'ble Single Judge of this Court wherein issue nos. 2 and 3 were as follows : "2. Is the suit bad for defect of the parties? 3. Was the defendant acting in the capacity of an agent of HSPL- SIPL (JV) in its dealing with the plaintiff?"
(3.) The said order was modified by another Hon'ble Judge of this Court wherein the issue nos. 2 and 3 were deleted. The said modified order by His Lordship was dated 24th July, 2013 whereby His Lordship was pleased to omit and/or delete the aforesaid two issues. The said order dated 24th July, 2013 was carried in appeal before the Hon'ble Division Bench and the Hon'ble Division Bench presided over by the Hon'ble Justice Ashim Kumar Banerjee by an order dated 2nd September, 2013 again modified the aforesaid order and observed that two issues deleted earlier should find place again and, accordingly, the issues were recast wherein the deleted issues were incorporated once again. Having regard to such orders passed by this Court petitioner submits that the application for seeking addition of party should be allowed.;