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IN THE HON ' !::-f COURT OF SH. VIKRANT VAID, LD. SCJ
SAKET DIS1'8iCTCOURT [ S OUTH- EAST DISTRICT], DELHI.
;:,·
c.,· (CI VIL SUIT NO. 23 9 / 19 ]
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IN J HE<i%TJER OF:
UPH FINVEST LIMITED ......PLAINTIFF

§" VERSUS
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czo/" MOHD. ALAM &
ANR. .. ... DEFENDANTS

NEXT DATE OF HEARING: 25.11.2019

·!Ii
IN DEX
-, ?<u
- S.NO PARTICULARS PAGE NO.
' APPLCI ATI ON ON BEHALF OF

1. DEFENDANT NO. 2/ APPLICANT UNDER ..

ORDER I RULE 10 READ WITH SECTI O ZE9 R

K THE CODE OF CIVIL PROCEDURE,

1908 SEEKING

I MPLEADMENT/ ADDITI ON OF
ROYAL

SUNDARAM GENERAL INSURANCE COMPANY

LIMI T ED AS A PARTY DEFENDANT IN THE

PRESENT CAPTIONED MATTER ALONGWITH

AFFIDAVIT.
ANNEXURE-A/ 1

2.
o;;-
THE COPY OF TH E DOCUME • D ATED
0,
31.01.2017 I SSUED BY ol'RANSPORT
){
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DEPARTMENT, DELHI.
c.,·

ANNEX!.!B.E·Al2 0
c .,·
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3. T H E COPY OF I NFORM ON REPORT
DATED

29. 12. 2016 BEARI SO NO. 430/ 2014

ANNEXURE·A '
O)?
T H E COPY? LETT ER DATED 23.01.2017
0
4. FROM R9,¥AL SUNDARAM IN RELATION TO
CZ,
POLigs-e,; NO . VPV0183882000100 FOR
8
V-E LE NO. DL6ER0554

NEXURE- A/ 4
,' ·
5,
,:::- T H E COPY OF AADHARCARD OF MOHD. ALAM
..
BEARING AADHAR NO. AS 204750732377.

DEFENDANT NO. 2/APPLICANT

THROUGH

NEW DELHI PRUDENS GLOBUS LEGAL SOLUTION

[Advorates & Legal Consultants]
DATED: 25.11.2019
Off: 29A/1, B·7,
SAFDARJUNG
ENCLAVE, NEW DELHI-
110029
+ 91-8010164371/ + 91- 989997924 2
 IN THE HO N' BLE COURT OF SH. VIKRANT VAI D i . SCJ
!
SAKET DISTRICT COURT [ SOUTH- EAST DISTRi qfr
o
l DELHI. [CI VIL SUIT NO. 239 / 1 91 Jf'
IN THE MATTER OF :
UPHAR FINVEST LIMITED
......PLAINTIFF

I(I)i

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VERSUS <J
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MO HD. ALAM & ANR. !o...........................DEFENDANTS
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NEXTrQ}JE OF HEARING: 25.11.2019

APPY CATION ON BEHAi OF DEFENDANT NO. 2 / NITIN

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KHANNA [APPLICANTl DERORDER I RULE 10 READ WITH

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SECTION 151 OF I_8E CODE OF CIVIL PROCEDURE, 1908
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SEEKING I MP# ADMENT/ ADDm ON OF INSURANCE
-
COMPANY i.ec::'ROYAL SUN DARAM GENERAL INSURANCE
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'
COMPA,NY<&IMITED AS A PARTY DEFENDANT IN THE
PRESENT CAPTIONEDSUIT.

MOST RESPECTFULLY SHOWETH:

PRELIMINAR Y SUBMISSIONS:

1. Tha t the prese nt captioned matter Is pending for adjudication

before this Hon'ble court and the same is fixed for 25.11.2019

for further proceedings. That the applicant has filed a

written
 0
s§>

statement for the suit<W1d the contents of the written statement

may be read as part,-%nd parcel of the presentapplication.

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2. That th captioned suit instituted by the plaintiff is not

mai@i)nable in the present form and is liable to be dismissed

i htaway as the transaciton as alleged by the Plaintiff is a

... ...
§t ommercial tr ansaction and the Plaintiff should have filed the
- co mmerci
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"'Q) al suit under the Commercial Courts Act that too only
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8 after the pre-suit mediation in accordance with Section 12 of
fS- the Act. Hence, the suit is liable to be dismissed without any
-
£:;'

(§
-
,- consideration on merits.

3. That the Plainti ff has instituted the captioned Suit against the

Defendants, including Defendant No. 2/ Applicant seeking

recovery in terms of money to the tune of Rs. 1,28,135/

(Rupees One Lakh Twenty-Eight Thousand One Hundred

Thirty -Five Only). That the Defendant No. 2 is made a party to

the present suit as it is alleged that the Defendant No. 2

stood as a guarantor of Defendant No. 1 for Loan

Hypothecation cum Hire-Purchase Agreement between Plaintiff

and the Defendant No. 1.

4. That the Defendant No. 2/ Applicant denies its privity in the

agreement between Defendant No. 1 and the Plaintiff. That

the
 Defendant No. 2/Applicant is neither a necessary or a proper

party for the purposes of the present suit. That the Suit is bad

in the eyes of law for mis-joinderof parties as the Plaintiff

has wrongly impleaded the Defendant No. 2/Applicant as

party Defendant and the Plaintiff has not impleadedthe

insurance

company with whom the alleged vehicle was insured, which is

I\
the proper and necessary party for the adjudicatio dispute

herein.
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5. T h at for the convenience of the Hon'ble Cf)urt the Defendant
(J'
it)
No. 2/Applicant herein submits the fa al matrix of the case
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which the Plaintiff has deceitfully co&, aled from the Court.
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The fa cts in brief are as below: ri}>

a. It i s humbly s-llf)mitt ed that the Defendant No.

2/ Applicant h@ leased his Hotel situated at 4071,

0·
Kaseru W n, Paharganj, New Delhi-110055 to one
&
Moh ;#f'uhidAlam. That somewhere in the month

of &-_tlgust 2016, Mohd. Tauhid Alam approached the

·'.::S
R
&_ endant No. 2/Applicant requesting the Defendant
r§
No. 2 to stand as guarantor for the loan that Mohd.

Tauhid Alam was taking from the Plaint i ff for the

purchaseof an E-Rickshaw on 29th 5eptember,

2019
 that was to be hypothecated in the name of the

Plaintiff as per the terms of the Loan Agreement.

b. That the Defendant No. 2/Applicant was also

contacted by the representativesof the Plaintiff who

informed the Defendant No. 2/Applicant regarding all

the details of

the Loan and the minimal formal requirements that

I\.
were needed to be complied with. T the Plaintiff
c:::,
t hen pressed and pursued th$ Q:f;efendant No.

2/ Applicant to st and as guarant8i> fo r Mohd. Tauhid

Alam saying that the amount-Sf Loan in question was

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only a meagre amount · Rs. 60,000/ - that Mohd.
c.,·
Tauh id Alam has all fl s to repay.

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c. That upon sevWr % e ted requests made by Mohd.

Tauhid Ala nd the persuasion of the Plaintiff, the

Defendant5No. 2 agreed to stand as guarantor for

the
c,·
loan t Mohd. Tauhid Alam was taking from the
&
_,Pl l'wtiff for the purchaseof an E-Rickshaw.

§'
-"'
,f That on 27 September, 2016 a representativeof the
th

. Plaintiff visited the Defendant No. 2/Applicant who

brought with him Blank Loan documents and certain
other blank unfilled documents. That the
 ;11
. c:::-
re senta ti ve of the Plaintiff then asked the
lb'
c,· fendant No. 2/Applicant to put his signatures as
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@ Guarantor for Mohd. Tauhid Alam at places

already marked 'x' (as can be validly seen on the

Loan Agreement annexed with Plaint) on a blank

Loan

"' Agreement. That theDefendantNo. 2/ Applicant signed

t
'?y at all the places marked ' x' under the impression that

.§- t he Defe n dant No. 2/Applicant was giving guarantee

8
- for Mohd. Tauhid Alam. That the Plaintiff also obtained
§'
- signatures of the Defendant No. 2/Applicant on some

.c: ::-· ot he r b l ank documents which the Plaintiff has

> '
not annexed with the Plaint.

e. That to the utter surprise of the Defendant No. 2

/ Applicant the Defendant No. 2 received summons

alongwith the copy of Plaint from this Hon'ble Court

somewhere in the month September, 2019 in the

above-captioned matter whereby the Defendant No.

2/ Applicant was called to file his Written Statement

on record. That the Defendant No. 2 then

haphazardly went through the plaint whereby the

Defendant No. 2/ Applicant came across the Loan

Agreement dated 29th September, 2016 where

the Defendant No. 2 found his signatures at the

place of Guarantor for
 Mohd. Alam which the DefendantNo. 2 never gave

for Mohd. Alam.

f. That it is submitted that by the time the Defendant No.

2/ Applicantreceivedsummons from this Hon'ble

Court in the above-cap tmed matter, Mohd.

Tauhid Alam
.)

had already 9:,

the Hotel of the Defendant No.

2/ Applicanto", situated at 4071, Kaseru Walan,

l'-
Paharga t New Delhi-110055.
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g. TW th e DefendantNo. 2/Applicant after receiving the
05
d-t ummons in the captioned matter searched the

$ documents le at the hotel by Mohd. Tauhid Alam.

,...._
That though the Defendant No. 2/Applicant could not
§'
(j find anything that could reveal the whereabouts of
0·
$- Mohd. Tauhid Alam, the Defendant No. 2/Applicant
8.;:
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·,;!I found few documents related to the E-rickshaw that

- was hypothecated in the name of the Plaintiff under

- Loan Agreement dated 29th Septembe r, 2016 in

pursuance of which the above-captioned recoverysuit

has been filed.

h. That it is submitted that the documents found by

t n rs

h t

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e l

f u

e d

n e

d s

a v

n e

t h

N i

o c

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2 e

/ p

A a

p rt

p i

l c

i u

c l

a a
 o,"
of E-rickshaw/vehic...l{.._ No. DL6ER0554 obtained from
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t he T r ansportDe filtmen,tGNCT of Delhi, I nformation

Report dated .'12.2016, F.I.R NO. 002587/17, Order

@
dated 16. 0l 7, Letter dated 23.01.2017 from Royal
lo
Sunda in relation to Policy No. VPV0183882000100

for (l( icle No. DL6ER0554 and photocopy of Aadhar

"d of Mohd. Alam.
-
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J The Copy of the document dated 31.01.2017

·.f!i issued by transport department, Delhi is

,f'
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,§ annexed and marked herewith as ANNEXURE-

-
'
c::-· A/1.

The copy of information report dated

29.12.2016 bearing SO No. 430/2014 is

annexed and marked herewith as ANNEXURE-

A/2.

The copy of letter dated 23.01.2017 from Royal

Sundaram in relation to Policy No.

VPV0183882000100 for vehicle No. DL6ER0554

is annexed and marked herewith as ANNEXURE-

A/3.
 The copy of Aadhar Card of Mohd. Alam bearing

Aadhar No. as 204750732377 is annexed and

marked herewith as ANNEXURE-A/ 4.

i. Tha t to the utter shock and surprise of Defendant No.

2/ Applicant, on peru sal of the copy of Aadhar Card of

Mohd. Alam, the Defendant No. 2/ Applicant found tha

t Mohd. Alam s not Mohd. Tauhid Alam-

whom

the Defend No. 2/Applicant knew and for whom the

9i
Defendae,p No. 2/ Applicant had signed the Loan
0i"
Agreement as Guarantor. Meaning thereby that the
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Moffitl'.Alam and Mohd. Tauhid Alam were two different
,:::,·
erson s and the Defendant No. 2/Applicant was
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!:]@acq u a i nted with Mohd. Tauhid Alam for whom the

s§:5 Defen dant No. 2/ Applicant had given guarantee under

8i the impression made by the Plainti ff's representati

" ve that the loan was being processed t owards Mohd.

<$' -
Ci Tauhid Alam. That the Applicant had never ever knew
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8 the Defendant No. 1.
·!!'

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6. That the Defendant No. 2/Applicant then became aware of the

- fraud that was played upon him by the Plaintiff in collusion
J

with Mohd. Tauhid Alam. That the Plainti ff mis repr esent
ing the

Principal Borrower induced the Applicant to stand as guarantor.

 That the fraud played by the Plaintiff in collusion with Mohd.

Tauhid Alam left the Defendant No. 2/ Applicant dismay and

shocked. 0

7. That it is submitt ed tha he vehicle particulars of E-

rickshawv/ ehicle No. DL6 0554 obtained from the Transport

CJ°
Dep ar t men t, GNCT of.§e lhi, as found in the documents found
15
by the Defendant -- 2 / Applicant at his Hotel reveals that the
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E-rickshaw wa pothecatedin the nameof Plaintiff, i.e. Uphar

Finvest Lt nd was under comprehensiveinsurance from

<:::,
Royal s 'aaram General I nsurance Company Limited.

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8. Ttla't it is further submitted that the E-Rickshaw of the
-::5
:,... efendant No. 1 for which the Defendant No. 1 allegedly availed
.,ry
-
§' loan from the Plaintiff frEsa n in the month of December

f 2016 as found from the documents found at the hotel of

$'
..S:,'1) Defend an t No. 2/ Applicant and an e-court order dated

16.03.2017 was also found whereby the vehicle was declared

as 'untraced.'

9. That the letter dated 23.01.2017 found by the Defendant No.

2/Applicant in the name of Defendant No. 1 issued by Royal

Sundaram General Insurance Company Limited, at the address

of the Hotel of Defendant No. 2/Applicant situated at 4071,

 Kaseru Walan, Paharganj, New Delhi-110055 revealed that

the vehicle of the Defendant No. 1 was insured against

theft with Royal Sundaram General I nsurance Co. Ltd. vide

Policy No. VPV0183882000100.

10. That since the vehicle was insured and was

hypothecated in the name of the Plairzt:i,ff, the Plaintiff can

validly claim
IQ
insuranceamount from Royal SundaramGeneral I nsurance

Company Limited tei rds the satisfaction of loan allegedly

advanced by the ®i intiff to the Defendant No. 1.

·-$'
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11. Tha t c9Ze insu rance company has a foremost role in the
a
presen eyase as the vehicle/e-rickshaw was validly covered

un insurance against theft with the Royal Sundaram General

urance Co. Ltd. when it seems to be stolen on 27.12.2016.

s,That therefore the insurance company has an imperative role

c.,o
t o play for the effective disposal of the present suit.
,g-
,
$-
8
·,'!I 1 2 . Tha t there fore, the impleadment of Royal Sundaram
,§'
- General I nsurance Company as a necessary defendant in
,rf
the present suit is pivotal for effective and completely

adjudication

of the suit at hand. That in absence of insurance company it

w r ts and

o m !abilities of the parties.

u i

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i a

f p

f p

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 1 3. That the impleadment/addition of Royal Sundaram

General I nsuranceas Defendant [Defendant no.3] is

absolutely required as without the presence of proposed

defendant, the question involved in the suit cannot be decided

finally and now become necessary and inevitable in this

present suit for the proper and complete adjudi tion of suit.

9)
14. That the Hon'bl premeCourt of I ndia has settled the

principle qua the n "essary and proper parties are concerned

·.$"
for suit seeking · ecific Relief. That it is no more res integra by
.:::,·
v i rtue of cfu preme Court's decision in Kasturi vs.
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Uyyam [ flumal & Ors., (2005) 6 sec 7 3 3 , whereby the
n,
Hon' Apex Court observed that
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'1/t is now clear that two tests are to be satisfied for
§ determining the question who is a necessary party.
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Tests are - (1) there must be a right to some relief

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8 against such party in respect of the controversies
·,!:!l
involved in the proceedings (2) no effective decree can
·'::$
c::-· be passed in the absence of such party."

That necessary parties are those against whom the relief is

sought and proper parties are those whose presence is

necessarily required for adjudication of the dispute. That

the
 J,5
I mple adment/ Addition of Royal daram as a party defendant

in the present captioned ma as a necessary party for the

'l)'
proper adjudication of the- pute.
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15. a
That the propos defendantis a necessary party i.e., in

the absence of who elief claimedin the suit cannot be granted

&
and proper adju/:lj ation of issuesinvolved in the instant suit is

not attainab and not impleading him would cause gross

8
miscarria of justice.

&
16 .!!" Th at the impleading of the abovemenitoned insurance
i§'
'in pany as a party defendant in the present suit shall facilitate
c:,·
,§ th e ends of justice and assist this Hon'ble court in judicially

deciding all the issues and questions involved in the present

matter.

PRAYER

In v iew of the contentions and submissions placed by the

Applicant/Defendant No. 2 hereinabove, it is most humbly and

respectfully prayed to the Hon'ble court to:

1) Allow the present application and implead Royal Sundaram

I nsurance Company as a party defendant in the present

captioned suit.
 0
<::)
2) Dir ect the plaintiff to amend the plaint vis- is memo of parties

and impleading Royal Sundaram I ns@al nceCompany as a

Necessaryparty for proper adjudieat)on and proper disposal of

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t he su it. '$' .
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3) Any othe r order the Hon'bl urt may deem fit and appropriate

in the facts and circum ces of the present case in favour of

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th e Applicant/Defen@i t No. 2.
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For the act of kindnes 4h e Applican t/ Defendan t No. 2 shall ever pray
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v.,·
and duty bound to e Hon'ble court.
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::, .::
·!Ii
-:J!i DEFENDANT No. 2/ APPUCANT
·'::$

<::'' THROUGH

NEW DELHI PRUDENS GLOBUS LEGAL SOLUTION

[Advocates & Legal Consultants]
DATED: .09.2019 CH: X-24A, CIVIL WING,
TIS HAZARI
COURT, DELHI- 11 0
05 4 .
+ 9 1 -8 0 1 0 1 64 3 7 1 / + 9 1 -98 9 99 79
24 2
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IN THE HON'BLECOURT OF SH JAY THA\ S A, LD. CSJ
SAKETDISTRICT COURT [ S OUTH - EASTDIS i CT],

DELHI. [ CIVIL S UIT [ DJ) NO. 239/ i

I .. •
IN THE MATTER OF : (:?@
UPHAR FINVEST INVESTMENT PLAINTIFF
9i
VERS§,
F2 A" K
MOHD.ALAM & 0
o.........................DEFENDANTS
ANR. "?.
CZ,
.s , AFFIDAVIT
0

I , Nitin Khanna age out 35 years, S/o Sh. Rakesh Kumar

Khanna Singh, hav[ residence at House No.3963, Mohalla
Kaseru Walan Opp# e Mandir Pahar Ganj , New Delhi-110055 do
'
hereby solemnlx# t firm and declare as under:

1. That I am the Defendant No. 2/ Applicant in the captioned

suit and I am well conversant with the facts
and circumstancesof the case and hence competent to
swear the present affidavit.
 <o"

&

2. That I have one throughthe contents of the accompanying

CJ°
Applicati drafted by my Counsel under my instructions
and t facts stated therein are true and correct to my
::,-:
k no dg e and be read as part and parcel of this affidavit
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a_.g:i are not being repeatedhere for the sake of brevity.
&
<J· J T h at the contents of the Application have been read over to
0) .
" me and understoodby me 1n my vernacular and I endorse
c,§ the same.
0
· [ DEPONENT]

8 -$-
·!Ii VERIFICATION:
-

·-:::S
,· Verified at Delhi on this the day of November 2019,
that thecontentsof the above affidavit are true and correct to
the best of my knowledge and belief and no part of it is false
therein and nothing has been concealed there from.

[ DEPONENT]