Lars Villing v. Anil Kanodia & Ors.

1. This hearing has been done through video conferencing.

2. The present petition has been filed challenging the impugned order dated 24th September, 2020 passed by the ld. District and Sessions Judge, South East District, Saket Courts, New Delhi (hereinafter, “Trial Court”) in CS DJ NO. 8047/2016. By the impugned order, an application filed by the Petitioner herein/ Defendant No. 1 in the suit (hereinafter, “Defendant No.1”) under Order VII Rule 11 of the CPC r/w Order I Rule 10 of the CPC has been dismissed.

3. The brief background is that a suit for recovery of money, damages and interests was filed by the Respondents herein/ Plaintiffs (hereinafter “Plaintiffs”) seeking recovery of a sum of Rs. 33,04,205/- along with interest @ 18% from the Defendants in the suit. The suit has been instituted against three Defendants i.e., Mr. Lars Villing- Defendant No. 1 (Wilhelmshaven, Germany), M/s Alba Metall Nord GmbH – Defendant No. 2 and Mr. Amit Taneja- Defendant No. 3 (Met Globe India Pvt Ltd). The allegation in the suit is that a commercial arrangement was negotiated between the Plaintiffs and the Defendant No. 2, which is a German company, in which the Defendant No. 1- 2021:DHC:2705 Mr. Villing was an active participant, and there was fraud and embezzlement of funds. The claim of the Plaintiffs in the suit specifically against Mr. Villing is that there is one Proforma Invoice and a Sales Contract, both of which have been placed on record, wherein Mr. Villing is shown as the specific person to whom the same is addressed, on behalf of Defendant No. 2- Company.

4. The Trial Court, vide order dated 24th September 2020, had deleted Defendant No.3 from the suit. However, the application for deletion from the array of parties, filed by Defendant No. 1 - Mr. Villing, has been rejected by the Trial Court, vide the impugned order dated 24th September 2020. The reasoning given by the Trial Court in the impugned order is that Mr. Villing was the person who negotiated the terms of the commercial arrangements with the Plaintiffs. The letter dated 28th September, 2016, that was addressed by the Defendant No. 2 Company to the Court, after service, was also considered by the court to recognise that Mr. Villing is an employee of Defendant No. 2 and had been representing the Defendant No. 2, and its business, in India. The court held that as the Defendant No.2 was negotiating through its employee - Defendant No.1 i.e., Mr. Villing, he would be the proper party to the suit. Accordingly, his application for deletion was rejected. The relevant extracts of the findings of the Trial Court read as under:

5. Mr. Anjaneya Mishra, ld. counsel for Defendant No. 1, submits that a certificate had been issued by the Defendant No. 2- Company, to the effect that Mr. Villing was an employee who was serving the company and he was neither the contractor nor a shareholder or any person having a stake in the said company. The employment of Mr. Villing was between June, 2012 to 31st December, 2014, and from January, 2015 to 31st May, 2019. Since the said date, Mr. Villing stopped working for the Defendant No. 2- Company. Therefore, he submits that the Defendant No.1 cannot be liable for action taken by him in the course of his employment with the Defendant No.2 Company.

6. Mr. Arpit Srivastava, ld. Counsel appearing for the Plaintiffs, however, submits that this document which shows the employment details of Defendant No. 1, is not on record of the Trial Court and hence cannot be relied upon in this Revision Petition. He, further, submits relying on the Proforma Invoice and the Sales Contract, that the Defendant No. 1- Mr. Villing, was the main person who was involved in the negotiations and the embezzlement has happened under his watch. He therefore submits that he ought not be deleted from the array of parties.

7. Heard ld. Counsels for the parties and perused the record.

8. The case of the Defendant No. 1 is that since he was only an employee, he cannot be made to bear the responsibility of the decisions/ liabilities of the Defendant No. 2- Company. He has already left the employment of the company.

9. This court is of the opinion that this fact can be proved by the Defendant No. 1 in the suit before the Trial Court, by leading evidence as to his specific role, as also by placing on record any document to show the termination of his employment with the German company. Admittedly, the document on Annexure R-10, which is placed on record in this petition, detailing the employment tenure of Mr. Villing, is not before the Trial Court.