Mr. Mahesh Gupta vs Mr. Harpal Singh Chawla & Ors.
2009 Latest Caselaw 3115 Del

.*          HIGH COURT OF DELHI : NEW DELHI

+           I.A. No.4335 /2009 in C.S. [OS] No. 1987/2008

                                     Reserved on: 31st July, 2009

%                                    Decided on:        11th August, 2009

Mr. Mahesh Gupta                                         ...Plaintiff
                           Through : Mr. Atul Nigam, Adv.

                           Versus

Mr. Harpal Singh Chawla & Ors.                     ....Defendants
                    Through : Mr. Nitin Gupta, Adv. with Ms. Kiran
                               Dharam, Adv. for Defendants No.1-2
                               Mr. Kapil Kher, Adv. for Defendant
                               No.3

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                      No

2. To be referred to Reporter or not?                                   No

3. Whether the judgment should be reported                              No
   in the Digest?

MANMOHAN SINGH, J.

1. The present application has been filed on behalf of defendant

No.3 under Order VII Rule 11 r/w 151 CPC for rejection of the plaint on

the ground that the same does not disclose any cause of action against

the defendant No.3 and in favour of the plaintiff, and the prayer of the

plaintiff is bad in law.

2. It is the alleged case of the plaintiff that his services had been

allegedly engaged by defendant Nos.1 and 2, erstwhile directors of the

defendant No.3 for the sale of plot bearing No. B-II/15, Mohan

cooperative Industrial Estate, Mathura Road, New Delhi, measuring

1994.79 sq. yds. (hereinafter called the 'suit property').

3. The plaintiff in his plaint, has further alleged that the

defendant Nos.1 and 2, who were the Directors of the defendant No.3,

were aware and allegedly apprised by the plaintiff that the alleged

professional charges of the plaintiff shall be 2% of the sale price plus

services taxes.

4. It is further alleged that with the efforts of the plaintiff,

defendant Nos. 1 and 2 retired/resigned from the Board of Directors and

Mr. Parveen Jolly and Mr. Pardeep Jolly were appointed Directors of the

defendant no.3 on 29th September, 2007 and the company was

transferred in their name. The plaintiff upon completion of the

transaction in conclusion of the contract demanded his professional dues

which were refused. He sent a legal notice dated 3 rd June, 2008, reply to

which has been received from defendant Nos.1 and 2.

5. It is contended by the defendant No.3 that the alleged

services of the plaintiff were allegedly hired by the defendant Nos.1 and

2. The professional charges of the plaintiff as claimed along with the

services taxes in any eventuality are payable by defendant Nos.1 and 2

only. No cause of action has arisen against defendant No.3. The

defendant No.3 has not engaged the services of the plaintiff. The

defendant No.3 is not liable to pay any amount to the plaintiff. The suit

is bad for misjoinder of parties. The defendant No.3 is neither a

necessary nor a proper party to the present proceedings. The suit is thus

liable to be rejected qua the defendant No.3.

6. The plaintiff in reply to this application averred that he is

seeking relief against all the defendants jointly and summarily.

Defendant No.3 is a necessary party in these proceedings along with the

defendant Nos.1 and 2. Defendant No.3 is a corporate entity wherein

defendant Nos.1 and 2 were its Directors. Defendant Nos.1 and 2 being

Directors and living persons have to act for and on behalf of defendant

No.3.

7. The suit property, which is the subject matter was shown as

an asset belonging to defendant No.3. However, due to acquisition of

the company, the control over the same exchanged hands and resulted in

the change of management of defendant No.3. A reply on behalf of

defendant Nos.1 and 2 dated 19th July, 2008 to the legal notice sent by

the plaintiff on 3rd June, 2008 was sent by defendant Nos.1 and 2

representing themselves to be Ex-Directors of defendant No.3.

8. Sh. Parveen Jolly who sworn the affidavit in support of this

application was not the Director at the time of accrual of cause of action.

Defendant No.3 is a necessary party in totality of the facts and

circumstances. The documents incorporating the transaction of sale

such as receipt dated 29th July, 2007 and Agreement to Sell dated 6 th

August, 2007 substantiates and support the fact of the transaction done

involving defendant No.3. Thus defendant No.3 cannot resile nor

absolve from its liability/commitment.

9. The defendant No.3 company is a private limited company.

It was incorporated under the Companies Act, 1956. A company, duly

incorporated, is a distinct and independent legal person. It bears its own

name and has a seal of its own. Its assets are separate and distinct from

those of its members. It can sue and be sued in its own name.

10. The company is a legal entity not having soul, mind, body

and limbs to walk to the court for filing a complaint. The company as

such has to be represented by some human agency, that means by some

one who is connected with the affairs of the company, that person may

be its Manager, Director, Managing Director or any other person so

authorized by the company who can represent during the course of

legal proceedings before the court.

11. It is settled law that for rejecting a plaint, the court has to

confine itself only to the averments made in the plaint and is not

supposed to look into the defence taken up by the defendant.

Examination of a plaint under Order VII Rule 11 CPC does not permit

the court to examine or declare upon the correctness of the contents, or

otherwise, of the plaint.

12. From the perusal of the plaint and the documents on record,

it is apparent that the subject plot belongs to defendant No.3. The

subject plot is shown as an inventory in the balance sheet/account books

of M/s. Manhattan Industrial Promoters Pvt. Ltd., defendant No.3

herein. The agreement to sell has been executed between the defendant

No.3 through defendants No.1 and 2 and plaintiff. The defendant No.3

company is a distinct and independent person which can be sued in its

own name.

13. In para 7(a) of the plaint, prayer has been made by the

plaintiff to pass a decree for money in favour of the plaintiff and against

the defendants jointly and severally. Also reply to the notice of the

plaintiff was sent by defendant Nos.1 and 2 on behalf of defendant No.3

company.

14. Since the plaintiff in the plaint alleged recovery of amount

from defendants jointly and severally and further alleged that the

professional services are being rendered to the defendants for the sale of

the subject plot on behalf of defendant No.3, the issue whether the

defendant No.3 has engaged the services of the plaintiff or not or the

suit filed by the plaintiff against the defendant No.3 is maintainable or

not will have to be decided after trial at the final stage of the matter.

Therefore, at this stage, I find no ground to reject the plaint qua

defendant No.3. The application is hereby dismissed.

MANMOHAN SINGH, J AUGUST 11, 2009 nn