Full Judgment
The purchase was made by the plaintiff from the defendant no.2 and if there is any privity of contract it is between the defendant no.2 and the plaintiff.
As there is no privity of contract between the plaintiff and the applicant herein and no warranty issued by the applicant, the question of any breach thereof cannot arise and therefore, the suit filed against it is bad for misjoinder of party and liable to be dismissed. Counsel for the plaintiff while opposing the application submits that undoubtedly the applicant is the manufacturer of automatic twist locks. It is not the case of the applicant that the plaint does not disclose any cause of action.
All that the applicant seeks is deletion of its name as there is no contractual relation between the plaintiff and the applicant herein. Reliance is placed on 1932 All England Reporter (Reprint) page 1 for the proposition that irrespective of contract the manufacturer is under a duty to make it carefully. Reliance is also placed on (2006) 4 SCC 644 and (2007) 10 SCC 33 for the proposition of implied warranty. Therefore, as every product carries with it an implied warranty the name of the applicant/defendant no.1 ought not to be deleted. In reply, Counsel for the applicant submits that the decision reported in 1932 AER (Reprint) 1 has no manner of application as it was a case of personal injury or injury to property which arose out of negligence of duty to take care.
No damages have been claimed on account of such injury and no pleading to that effect can be found in the instant case. (2006) 4 SCC 644 will have no application as the instant case is not one of express warranty in the absence of any transaction.
In fact the plaint proceeds on the premise that the manufacture was not in accordance with the required specifications. The applicant was never informed of the plaintiffs requirement and in the absence of any contract to that effect orders be passed as sought.
Having considered the submissions of the parties on a perusal of the plaint the plaintiff has proceeded on the basis that the manufacture of automatic twist locks by the applicant/defendant no.1 was not as per required specifications. It has also pleaded that the same suffered from material defects as per technical specifications.
The applicant is undoubtedly the manufacturer of automatic twist locks and has been manufacturing the same as per certain technical specifications. To determine what those technical specifications are and whether those specifications were the requirement of the plaintiff it will not be proper to delete the name of the applicant at this stage.
It is only on the basis of technical specifications that the applicant has been manufacturing its products and such specifications must be such to conform to the requirement of not only the plaintiff but in respect of all the end users of such products. Therefore, without ascertaining what the requirement of the plaintiff was or the technical specifications applied to its products by the applicant defendant no.1, which can be ascertained only at the hearing of the suit and not at this stage, no order is passed on this application.
Accordingly, this application is dismissed. All parties to act on a Photostat signed copy of this order on the usual undertakings.