M/S Krypton Heights Builders vs M/S Aercomfort Anushka J.V. & Ors.
2017 Latest Caselaw 6682 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(COMM) No. 97/2017

%                                               23rd November, 2017

M/s KRYPTON HEIGHTS BUILDERS                  ..... Plaintiff
                  Through: Mr. Alok Tripathi, Adv.

                          versus

M/s AERCOMFORT ANUSHKA J.V. & ORS.         ..... Respondents

Through: Mr. Dinesh C. Pandey, Mr. Rajeev Gurung and Mr. Dhananjay Kumar Gupta, Advs.

for D-1, 2, 4, 6 & 7

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

IA No.10031/2017(u/O VII R-11 CPC by defendants No.1, 2, 4, 6 & 7)

1. This is an application filed by defendants No.1, 2, 4, 6

and 7 under Order VII Rule 11 CPC for rejection of the plaint or

dismissal of the suit. During the course of arguments this application

is pressed for dismissing of the suit against defendants nos. 5 and 6 on

the ground that these defendant nos. 5 and 6 are not the partners of the

defendant no.1 partnership firm. It is however conceded that defendant

nos. 4 and 7 in fact became partners of the defendant no.1 partnership

firm in terms of the business takeover agreement dated 1.3.2014 and

as per which agreement the defendant nos. 4 and 7 have also agreed to

be personally liable for the liabilities of the defendant no.1 existing on

the date of entering into this agreement.

2. A reading of the plaint shows that this suit is filed for

recovery of Rs.3,17,10,185/- on the ground that defendant no.1 was

given a contract of air conditioning of a railway project in Delhi and

part of which project was as per the plaint sub-contracted to the

plaintiff. In the plaint it is pleaded that the plaintiff did the work and

for such work done the plaintiff is entitled to the suit amount which

remains unpaid on account of work having being done by the plaintiff

for the defendant no.1.

3. A reading of the plaint shows that the defendant no.5 is

pleaded to be a director of a company M/s. Anushka Air Conditioning

Pvt. Ltd. i.e. the defendant no.3 company. Surely, when a company is

a partner in a partnership/in a joint venture agreement then the liability

of a partner will be that only of the partner M/s. Anushka Air

Conditioning Pvt. Ltd. Rights and liabilities of the partner M/s.

Anushka Air Conditioning Pvt. Ltd. in the defendant no.1 is

completely separate in law and cannot be the liability of its

shareholders or directors because a company is a separate legal entity

than its directors and shareholders. Therefore, since defendant no.5 is

only sued on account of this defendant being a signatory to the

cheques issued in favour of the plaintiff which were dishonoured, and

which cheques were signed by defendant no.5 only as a director of

defendant no.3 company who is a partner in the defendant no.1

partnership firm, accordingly in law there is no cause of action against

or liability of the defendant no.5 who is only a director of one partner

company, that is the defendant no. 3 company M/s. Anushka Air

Conditioning Pvt. Ltd. Suit against defendant no.5 therefore as per the

admitted contents of the plaint does not layout a legal liability of the

defendant no.5 and therefore suit as against defendant no.5 will stand

dismissed by deleting defendant no.5 under Order I Rule 10 CPC read

with Order VII Rule 11 CPC.

4. So far as, defendant no.6 in the suit is concerned it is seen

that the same is a company M/s. Aeon Air Conditioning Pvt. Ltd. This

defendant no.6 company is said to have purchased shareholding in one

of the partner company namely defendant no.3/M/s. Anushka Air

Conditioning Pvt. Ltd. Therefore defendant no.6 is only a shareholder

of the partner company/the defendant No.3. As already stated above,

liability of a shareholder of company which is a partnership firm

cannot be the liability of the company and vice versa. Therefore

merely on account of defendant no.6 company being a shareholder of

defendant no.3 company, and which defendant no.3 company is a

partner in the partnership firm of defendant no.1 firm, hence there

cannot be a personal liability of the defendant no.6 company towards

the plaintiff. Accordingly, there is no cause of action which is pleaded

to be found as required by law for liability of the defendant no.6

company to arise in favour of the plaintiff. Once there is no legal

cause of action pleaded in the plaint as against the defendant no.6

company, the suit against the defendant no.6 company is liable to be

dismissed and accordingly defendant no.6 is deleted from the array of

parties by an application of Order I Rule 10 CPC read with Order VII

Rule 11 CPC.

5. This application is therefore allowed to the limited

extent of deleting defendant nos.5 and 6 from the array of defendants

in the suit. Amended memo of parties be filed by the plaintiff along

with necessary amendments in the plaint within a period of four weeks

from today.

6. At this stage at the request made on behalf of the counsel

for defendant nos.1, 2, 4 and 7, it is noted that this application is

disposed of as not pressed as regards other averments made in the

same and if there is an entitlement of the defendant nos.1, 2 to 4 and 7

to seek dismissal of the suit under Order XII Rule 6 CPC then liberty

is granted to file such application of course if the ingredients of Order

XII Rule 6 CPC are satisfied and so averred in the application under

Order XII Rule 6 CPC which is proposed to be filed by these

defendants.

7. IA is accordingly disposed of.

NOVEMBER 23, 2017                              VALMIKI J. MEHTA, J
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