Bses Rajdhani Power Ltd. vs Golf Technologies Pvt Ltd & Others
2019 Latest Caselaw 3610 Del

$~45
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 5th August, 2019
+                         CS (OS) 2111/2015
       BSES RAJDHANI POWER LTD.                                 ..... Plaintiff
                          Through:      Mr. Sunil Fernandes, standing
                                        counsel with Ms. Anju Thomas,
                                        Advocate. (M: 9643344917)
                          versus
       GOLF TECHNOLOGIES PVT LTD & OTHERS ..... Defendants
                    Through: Mr. Achal Gupta and Ms. Annie
                              Rais, Advocates. (M: 8860751919)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

O.A. 14/2019 (for setting aside the order dt. 10/12/2018)

1. This is an appeal filed against the order of the Joint Registrar dated 10th December, 2018 by which the Joint Registrar failed to delete the Directors of the company from the array of parties. The submission of the ld. Counsel for Defendant No.6 is that a Director cannot be made liable for the electricity dues of the company. Ld. Counsel relies upon Tristar Consultants v. M/s Vcustomer Services India Pvt. Ltd. & Anr., ILR (2007) 1 Delhi 1053 and certain other judgments following the said judgment, including a Division Bench judgment of this Court, to support his submission.

2. On the other hand, ld. Counsel for the Plaintiff submits that in the present case, Mr. Deepender Bedi - Defendant No.6 was personally aware of the dues which had been incurred and had guaranteed the

Plaintiff that the dues would be cleared. This is clear from the e-mails on record as also an e-mail dated 21st February, 2014 addressed by Mr. Deepender Bedi to the Plaintiff's officials.

3. On the basis of these correspondences and the post-dated cheques, it is further submitted on behalf of the Plaintiff that Defendant No.6 is the Executive Director of Defendant No.4 and is responsible for the day to day affairs of Defendant No.4. On the strength of these averments and documents, she submits that Defendant No.6 is a proper and necessary party and cannot be deleted at this stage.

4. The Court has considered the submissions of the parties. A perusal of the documents on record shows that emails have been written by Defendant No.6 confirming that the outstanding due to the Plaintiff would be paid. The Plaintiff submits that even the cheques were signed by Defendant No.6. The nature of outstanding in the present case is for utility services, namely electricity. The amounts due are not in the form of compensation or damages, which are adjudicated and levied upon the company. The company, including its director - Defendant No.6 has admitted the outstanding and they have assured the Plaintiff that the payment would be made. This is unlike the position in Tristar Consultants (supra), which relates to recovery of damages on account of breach of contract. Even in Tristar Consultants (supra), paragraph 13 of the judgment reads as under:

"13. In a suit for recovery of money, only such persons can be impleaded as defendants against whom averments are made which on proof would entitle the plaintiff to a decree whether jointly or severally or in

the alternative against the said persons named as defendants."

Thus, if the director has personally assured to clear the outstanding by way of email and the said document is placed on record, it cannot be said that the director is not a necessary and proper party.

5. The question as to whether Defendant No. 6 has made himself personally liable or not, would be a question that would require evidence to be led, inasmuch as at this stage, the emails do show that Defendant No. 6 was taking it upon himself to clear the dues. The email dated 21st February, 2014, written by Defendant No. 6 to one of the officials of the Plaintiff company, and the reply to that email, read as under:

"Deepinder Bedi <[email protected]> 02/21/2014 07:45PM To "[email protected]" <[email protected]> cc Lt Col HS Bedi <[email protected]>, Vikas Chauhan<[email protected]>,"[email protected]",< [email protected]>.,"[email protected] com"<[email protected]> Subject Re: Inconsistent Payment (GOLF TECHNOLOGIES PVT LTD; CA:100007008) - Payment not made as per the agreed installment plan - intimation regarding disconnection of supply" Avinash ji - as discussed and agreed, we are giving DD's for Rs. 20 Lakhs today. You are requested to kindly restore the power ASAP. We also agree to pay Rs. 26 Lakhs by February 28th. Beat regards Deepinder Sent from my iPhone"

"Re: Inconsistent Payment (GOLF TECHNOLOGIES PVT LTD; CA:100007008) - Payment not made as per the agreed installment plan - intimation regarding disconnection of supply Avinash R Kumar to: Deepinder Bedi 02/26/2014 07:04 PM Cc: Lt Col HS Bedi, "[email protected]", Vikas Chauhan, "[email protected]"

Dear Col Bedi ji, This is with reference to the commitment/undertaking submitted by you for deposit of 2nd installment of Rs. 26 lakh with BRPL latest by 28th February 2014. In continuation to the same, I would like to request you to honour your commitment by all means because in case of failure, BRPL will be constrained to disconnect your supply for recovery of the dues. This may please be treated as a gentle reminder only This is for your kind information please regards Avinash Kumar GM-KCC 9350261876"

6. The above emails show that Defendant No. 6 assured the Plaintiff that the outstanding would be cleared. In what manner the said assurance/undertaking was given and whether the same was in the nature of a guarantee or not, would have to be adjudicated. Specifically, the email dated 26th February, 2014 seeks to suggest that the commitment/undertaking was given by Defendant No.6 - Mr. Deepinder Bedi for depositing the second installment of Rs. 26 lakhs with the Plaintiff by 28th February, 2014.

7. In the order dated 10th December, 2018, the Joint Registrar also observed as under:

"8: I have gone through some emails relied by the plaintiff and it appears that there was some compromise with plaintiff and these two defendants/applicants who have agreed to pay the settled amount but have not paid the same. In these circumstances, it cannot be said that these two defendants/applicants have no role/interest in the subject matter of the case. Hence, these two defendants are the proper and necessary parties in the present matter. Accordingly, the application lacks merits and is dismissed."

8. This could, in fact, constitute a guarantee/surety in itself. Even the issues would have to be adjudicated only at the stage of trial and at this stage, the Defendant company's director, i.e., Defendant No. 6 cannot, therefore, be deleted. Accordingly, the original appeal is dismissed.

PRATHIBA M. SINGH JUDGE AUGUST 05, 2019/dj

corrected & released on 20th August, 2019