M/S Divya Design Fab Private ... vs Jai Prakash Aggarwal
2014 Latest Caselaw 4925 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+          C.M.(M) No.91 /2014 & C.M.Nos.1527/2014 (Stay),
           1528/2014 (Exemption)


%                                                   29th September, 2014

M/S DIVYA DESIGN FAB PRIVATE LIMITED & ANR .......Petitioners
                   Through: Mr.Amit Sanduja, Advocate.

                          VERSUS

JAI PRAKASH AGGARWAL                          ...... Respondent

Through: Mr.Sanjeev Rawat, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India impugns

the order of the trial court dated 18.12.2013 by which the application filed

by the defendant no.2/petitioner under Order I Rule 10 CPC for deleting her

as a party has been dismissed.

2. A reading of the plaint shows that the respondent/plaintiff has made

allegations both against the defendant no.1/company and defendant

no.2/petitioner no.2 with respect to the liability of payment to be made to the

respondent/plaintiff for the loan which has been advanced. The present

plaint is not a plaint wherein defendant no.2 is added only as a Director of

the defendant no.1/company without making any averments against her.

Once the respondent/plaintiff has made the necessary averments with respect

to the liability of the petitioner/defendant no.2, and which liability of the

petitioner no.2/defendant no.2 was taken over by her as per the plaint from

her husband who was the earlier Managing Director of the defendant no.1

company, then, there is a disputed question of fact as regards the liability of

the petitioner no.2/defendant no.2 which requires trial, and therefore the

petitioner no.2/defendant no.2 cannot be deleted at this stage because the

plaint does contain the averments with respect to the cause of action against

the petitioner no.2/defendant no.2.

3. The trial court in the impugned order dated 18.12.2013 in this regard

has specifically stated that there arises a triable issue with respect to liability

of the petitioner no.2/defendant no.2.

4. I may add that there is another reason why the petitioner

no.2/defendant no.2 has to be added as a party to the suit because there was

an earlier order which was passed by the trial court on 07.10.2013 and which

order has become final. By the order dated 07.10.2013, the defendant

no.1/company was directed to furnish the security. Admittedly, the

petitioner no.2/defendant no.2, as per her own case, is the Director of

defendant no.1/company, and therefore the trial court has rightly observed

that on behalf of defendant no.1/company, someone will have to furnish the

security, and which will surely be by/of/through the Director of the company

viz the petitioner no.2/defendant no.2.

5. Counsel for the petitioners argues that the liability of a company

cannot be the liability of the Director and to which proposition of law there

is no dispute, however, a reading of the plaint shows that there is a personal

liability which is alleged against the petitioner no.2/defendant no.2, and

which more so has to be taken with the fact that the defendant no.1/company

has been directed to furnish the security vide order dated 07.10.2013.

6. In view of the above, there is no merit in this petition, and the same is

therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 29, 2014 KA