9911796707
TMI Blog2003 (5) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner No.1, M/s. Kirloskar Electric Company Ltd. Respondent No. 1, M/s. Utkal Solvent Extractions (P) Ltd. received the DG Set along with a separate certificate issued by M/s. Kirloskar Electric Company Ltd. highlighting important qualities and features of alternator which was an integral part of the DG Set. 4. It may be pertinent to mention that as per the booklet enclosed along with the agreement it was mentioned that the alternator had a frame No. 4AB 280/6, but respondent No.1 received the alternator in which frame number was 4AB 280/E which was not as per the specification supplied at the time of finalising the agreement. Respondent No.2, M/s. Greaves Ltd. vide letter dated 21-2-1994 confirmed to respondent No.1 that the alternator fitted with DG Set is that of a capacity of 200 KVA, Model No. 4AB 280/6, though the actual model of alternator was 4AB 280/E, which has also been admitted by the service engineer at a later stage. 5. The DG Set started giving various problems right from its inception to the respondent claimant. The difficulties were pointed out to respondent No. 2 vide letter dated 26-4-1994. Respondent No.2 had undertaken to rectify the defects im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in these proceedings. The Commission observed that even if two separate proceedings were filed against M/s. Greaves Limited and M/s. Kirloskar Electric Company Ltd, the question in that regard would be common to both the proceedings. In that view of the matter, instead of filing two separate proceedings, it would be open to the complainant to file one proceeding against all the respondents as the cause of action is the same. In the impugned order it is also observed that in case an order of compensation is passed against M/s. Greaves Ltd. for supply of DG Set with defective alternator, they in turn might have to file proceedings against M/s. Kirloskar Electric Company Ltd. That would give rise to multiplicity of proceedings. In order to avoid such multiplicity of proceedings, it would be desirable that M/s. Kirloskar Electric Company Ltd. is retained as a party respondent in these proceedings. The Commission held that the compensation application filed by M/s. Utkal Solvent Extractions (P) Ltd. is maintainable against the petitioners, M/s. Kirloksar Electric Company Ltd. 7. The learned counsel appearing for the petitioners, Mr. Pramod B. Agarwala, submitted before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench of this Court in which it has been specifically mentioned that apart from other grounds, the petitioners had stated in reply that there was no privity of contract between the petitioners and the claimant M/s. Utkal Solvent Extractions (P) Ltd. and, therefore, the petitioners could not be proceeded against. It is unfortunate that the petitioners have deliberately concealed this material fact from this Court. 10. The learned counsel for respondents 2 3 submitted that the petitioners had not approached this Court with clean hands and because of material concealment of relevant facts, this petition deserves to be dismissed with exemplary costs. The Courts have consistently taken the view that all those who approach the Court must come to the Court with clean hands. The petitioners are guilty of concealment of material facts and do not deserve any indulgence and consequently this petition is liable to be dismissed only on this short ground of suppression of material facts with exemplary costs. 11. In Rajabhai v. Vasudev Dhanjibhai AIR 1964 SC 345, their Lordships of the Supreme Court observed that a party who approaches the Court knowing or having reason to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te test certificate has also been issued by the petitioners which is annexed with the petition at page 36. The relevant portion of the certificate reads as under : "Certified that the machine has been run and found to be electrically and mechanically sound and in working order in all particulars. Certified that it has passed the appropriate high voltage tests and generally complies with the requirements of Indian Standard Specifications: 4722/1992. The band of regulated voltage is +/- 1.0 per cent of rated voltage. Type tests have been carried out on machine number 9142PAC-01." For Kirloskar Electric Co. Ltd. 17. The learned counsel for respondents 2 3 submitted that the petitioners cannot be necessary parties, but it cannot be denied that the petitioners are proper or formal parties to the complaint and their presence would be necessary for effective adjudication of the controversy involved in the complaint. Mr. Mukhopadhyaya submitted that the Commission has correctly observed that to avoid multiple proceedings, it would be desirable to retain the petitioners as parties to the proceedings. In support of his submission, Mr. Mukhopadhyaya also placed reliance on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 21. We have carefully considered the rival contentions of the parties. The Courts in a series of judgments have recognised the essential distinction between a necessary party and a proper party . Necessary parties are parties necessary to the constitution of the suit and without whom no decree at all can be passed. Proper parties are those whose presence enables the Court to adjudicate more effectually and completely the questions raised in the suit. When this ratio is applied in the facts and circumstances of this case, then the Commission has rightly come to the conclusion that the petitioners are proper parties, particularly, when alternators which are integral part of the DG sets were supplied by the petitioners. A separate certificate was issued by the petitioners regarding the features of the alternators at the time of supply of the DG Set to the respondent-claimant. The respondent claimant has filed the complaint prim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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