1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.3444/2009 (M/s Marico Industries Ltd. ..vs.. M/s Bagh Fruits and another ) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM:- B.P. DHARMADHIKARI, J. DATE:- NOVEMBER 20, 2009 Heard finally by sent of parties. The learned trial court has by impugned order dated 19/1/2009, permitted respondent No-1 – plaintiff to implead the petitioner as party to the Special Civil Suit No. 798/1993. The said civil suit is filed by respondent No.1 against respondent No.2 for recovery of certain amounts. Because respondent No.1 claimed to be sick, the proceedings under Sick Industrial Companies (Special Provisions) Act, 1985 were pending, the suit remained stayed under Section 22 thereof for about 10 years. Thereafter, respondent No.1 learnt that the establishment of respondent No.2 is purchased by the present petitioner and hence, it moved an application on 28/2/2007 under Order 1 Rule 10 read with Order 2 6 Rule 17 of Code of Civil Procedure for joining present petitioner as party respondent. The application was opposed by the present petitioner, but contended that as per their agreement of purchase, they cannot be treated as successor of original defendant and they had accepted liability only of employees’ due. The court below has after considering this controversy, passed impugned order. According to learned Advocate Shri S.V.Manohar for petitioner- defendant No.2, the order is cryptic and does not record any reason. According to learned Advocate Shri Samudra, the order specifically observes that whether proposed party i.e. Petitioner is liable to pay dues to plaintiff on behalf of defendant No.1, is a question of fact. During arguments, for the first time before me, an attempt was made to show that the present respondent No.1 has after learning about the purchase by petitioner, approached it with offer of compromise and in correspondence which ensured, petitioner accepted to settle the dues and as amount offered in compromise by the present respondent No.1 was found to be on higher side, the compromise could not materialize. The learned counsel for petitioner has stated that there was no acceptance of claim and at the relevant time, negotiation for compromise were going on. 3 Learned counsel for respondent No.1 - original plaintiff has argued that the sale and purchase agreement dated 02/3/2000 placed on record may also have been prepared lateron to suit its purpose by the petitioner. I find that the present petitioner has placed on record the documents, which prima facie reveal that it had only accepted assumed liabilities in Schedule 2 to the agreement. The excluded liabilities were not to be shouldered by it. The present respondent No.1, on the other hand, placed reliance upon certain correspondence to urge that the petitioner had undertaken to clear off the dues of original defendant No.1. In these circumstances, before allowing application under Order 1 Rule 10 of the CPC against a subsequent purchaser, the court below ought to have at least demonstrated how disputed question arose. Learned Advocate Shri Samudra has stated that this court is taking a too technical view of the matter. It is apparent that if this court, at this juncture, records an y finding on this issue, consideration thereof by the trial court either prima facie or on merits will be prejudiced. Perusal of order dated 19/1/2009 reveals that the court below has not considered either the agreement or documents produced before it in the light 4 of arguments advanced. Learned Advocate Shri Samudra, who appeared before the trial court states that these arguments were also advanced before learned trial court and thereafter the observation has been made. Learned Advocate Shri Manohar states that he has no instructions about the arguments advanced before the trial court. However, as there is no consideration of arguments by lower court, I find that the present order dated 19/1/2009 cannot be sustained. The same is quashed and set aside. The application (Exh.101) moved by the present respondent No.1 for joining petitioner as party and for amendment, is restored back to the file of 3rd Joint Civil Judge, Senior Division, Nagpur. The said court is directed to hear the parties afresh in accordance with law and attempt to decide the matter expeditiously and in any case by 15/12/2009. Parties are directed to appear before the said court on 26/11/2009 and to abide by its further directions in the matter. Rule accordingly. Writ petition is disposed of. No order as to costs. JUDGE Diwale.