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2013 DIGILAW 2383 (DEL)

NF. Thermal Solutions v. Nf. Thermo Solutions

2013-12-10

S.MURALIDHAR

body2013
ORDER S. Muralidhar, J. 1. The following two issues were directed to be treated as preliminary issues: (i) Whether there is any cause of action arisen in favour of the plaintiffs and against the defendants in view of the Resolution dated 09.08.2008 passed by the plaintiffs having no objection if new company in the name of NF Thermo Solutions Pvt. Ltd. is incorporated by the defendants. OPD (ii) Whether this Court has pecuniary jurisdiction to entertain and try the present suit. OPD As regards issue No. 2, the submission of Mr. Rajesh Binati, learned counsel for the Defendants is that the prayer (a) in the suit is for decree in the sum of Rs. 20,00,000 with further and pendent lite interest @ 15% p.a. He submits that although the relief of perpetual injunction has been valued at Rs. 5,000, inasmuch as the principles relief is for a sum not above Rs. 20,00,000 this Court would not have jurisdiction to entertain the suit. He relies on the decision in Karam Singh Vs. Sen AIR (29) 1942 Allahabad 387. He points out that Order II Rule 6 CPC allows the Court to order separate trial where it appears that the causes of action joined in one suit cannot be conveniently tried or disposed of. He submits that even the relief of permanent injunction should have been valued at not less than Rs. 20,00,000 and court fess should have been paid on that basis for this Court to entrain such relief. 2. Mr. A.K. Singla, learned Senior counsel for the Plaintiffs, on other hand, refers to the decisions in Putta Kannayya Chetti Vs. Rudrabhatla Venkata Narasayya AIR 1981 Madras (FB). 3. 20,00,000 and court fess should have been paid on that basis for this Court to entrain such relief. 2. Mr. A.K. Singla, learned Senior counsel for the Plaintiffs, on other hand, refers to the decisions in Putta Kannayya Chetti Vs. Rudrabhatla Venkata Narasayya AIR 1981 Madras (FB). 3. The Court is inclined to follow the decision of the Full Bench of the Madras High Court, which holds that for the purpose of determining the jurisdiction of the Court "Though a plaint may contain several cause of action, there is only suit and the jurisdiction of the Court as regards the suit depends on the amount or value of the aggregate subject matters on the date of the institution of the suit." It was further held that while for the purpose of Limitation Act, 1963, several causes of action joined in one plaint may be treated as separate suit, for the purpose of Order VII Rule 10 CPC "the aggregate of the claims put forward in the plaint must be treated as one suit." 4. In the present case, aggregate of the value of the reliefs under prayers (a) and (b) exceeds Rs. 20,00,000 and, therefore, this Court has pecuniary jurisdiction to entertain the suit. Issue No. 2 is accordingly answered in favour of the Plaintiffs and against the Defendants. 5. As regards issue No. 1, it is necessary to briefly set out the facts leading to the filling of the present suit. Plaintiff No. 1 is NF Thermal Solutions Pvt. Ltd. and Plaintiff No. 2 is it Director. The suit has been filed against NF Thermo Solutions Pvt. Ltd., Defendant No. and Mr. Dinesh Batra, Defendant No. 3 who admittedly are the Directors of Defendants No. 1 It is stated that the incorporation of Plaintiff No. 1 was conceived of by Plaintiff NO. 2, Defendant No. 2 and another person, Mr. Gurdeep Saini. All the three became the Promoters/Directors of Plaintiff No. 1 and took over the work of manufacture, import and export of heating equipments and their parts. An order was received from Cosmic Exim Ltd. for manufacturing of lead melting plant in United State of America 18th August 2008. The Plaintiffs state that while the execution of on work order was in progress, Defendant No. 2 persuaded Plaintiff No. 2 to establish another company incorporated under the name and style of Defendant No. 1. An order was received from Cosmic Exim Ltd. for manufacturing of lead melting plant in United State of America 18th August 2008. The Plaintiffs state that while the execution of on work order was in progress, Defendant No. 2 persuaded Plaintiff No. 2 to establish another company incorporated under the name and style of Defendant No. 1. An Identical name for the new company was suggested new entity exclusively. It is stated that after Defendant No. 1 company was established, Defendant No. 2 stopped participating in the affairs of Plaintiff No. 1 and created e-mail IDs of his name on the address of Defendant No. 1. 6. The Plaintiffs do not deny that a Resolution was passed on 9th August 2008, duly signed by Plaintiff No. 2 and Defendant No. 2 regarding the incorporation of Defendant No. 1 In terms of the said Resolution, it was agreed that no objection would be raised for incorporating Defendant No. 1 with the name NF Thermo Solution Pvt. Ltd. However, the grievance of the Plaintiffs, is that Defendant No. 2 took away the entire business of the Plaintiffs, which resulted in the Plaintiff No. 1 company incurring losses. The central plank of the Plaintiffs' case is that the understanding between the parties was that Plaintiff No. 2 would also be one of the Promoters/Directors of Plaintiff No. 1 company, but Defendant No. 2, and along with his wife, became the Promoters/Director of Defendant No. 1 in an illegal and malafide manner. Accordingly, the suit was filled for recovery of Rs. 20,00,000, together with pendent lite and future interest @ 15% p.a. and for decree of perpetual induction restraining Defendants 2 and 3 "from transacting/negotiating business akin to the business prospected and developed by Plaintiffs, in the name of defendant company." 7. In the written statement filed by the Defendants, it is pointed out that Defendant No. 1 company was incorporated on 14th August 2008. It is stated that is was Plaintiff No. 2 who illegally removed Defendant No. 2 as Director of Plaintiff No. 1 and this led to Defendant No. 2 filling a petition against the Plaintiffs in the Company Law Board ('CLB') under Sections 397 and 398 of the Companies Act, 1956 ('Act'), in which an order was passed on 2nd April 2009 by the CLB freezing the bank account of Plaintiff No. 1. It is submitted that as a counterblast, the present suit was filled on 25th May 2009. 8. During the admission/denial of documents, the Plaintiffs did not deny the Resolution dated 9th August 2008. Consequently, Issue No. 1 was on treated as preliminary issue. 9. Mr. Singla referred to the averments in para 16 of the plaint and para 2 of the replication on merits, wherein it has been stated that Defendant No. 1 was intended to incorporated with Plaintiff No. 2 as one of the Promoters/Directors. Mr. Singla submitted that although the Resolution specifically did not say so, this was what was understood between the parties. He relied on From 1A submitted under Sections 20 and 21 of the Act for incorporation of Defendant No. 1, showed three alternative names for the company, i.e. NF Thermo Solutions Pvt. Ltd., NF Solutions Pvt. Ltd. and NF Thermal Pvt. Ltd. In the said application, both Defendant No. 2 as well as Plaintiff No. 2 were shown as Promoters. 10. However, when the Court pointed out that the said application does not bear a date, and it was not dear if it was in fact filed in the same form in the CLB, Mr. Singla pointed out that the Plaintiff had filed 1A No. 13313 of 2012 for a direction to the Registrar of Companies ('RoC') to produce the file containing the singed copy of the above From, 1A. 11. In the first place, it may be noticed that the Resolution dated 9th August 2008 does not state that NF Thermo Solutions Pvt. Ltd. had to necessarily have the same Promoters as NF Thermal Solutions Pvt. Ltd. The said Resolutions reads as under:- Resolved that the Company have no objection, if new Company in the name of NF Thermo Solution Pvt. Ltd. or any name prefix with NF be incorporated with the same management or with other promoters in the states of Delhi. The expression "same management or with other promoters" permits incorporation of Defendant No. 1 with promoters other than Plaintiff No. 2. The so-called intention of the parties to have only Plaintiff No. 2 and Defendant No. 2 as Promoters of Defendant No. 1 is not borne out by the above Resolution. It is not possible for the Court to permit the Plaintiffs to lead evidence to the contrary. 12. The so-called intention of the parties to have only Plaintiff No. 2 and Defendant No. 2 as Promoters of Defendant No. 1 is not borne out by the above Resolution. It is not possible for the Court to permit the Plaintiffs to lead evidence to the contrary. 12. The application in Form 1A even does not bear a filling date or the stamp. In the circumstances, it futile to direct the RoC to produce the record of the above application, which may not even be possible to trace. In any event, the above application by itself will not render illegal the incorporation of Defendant No. 1 with Defendants 2 and 3 as its Directors. 13. Inasmuch as the Plaintiffs have not been able to show that the Resolution dated 9th August 2008, which is admitted by the Plaintiffs, does not permit incorporation of Defendant No. 1 with Promoters others than Plaintiff No. 2 and Defendant No. 2, Issue No. 1 must be answered in favour of the Defendant and against the Plaintiffs. In other words, it is held that there is no cause of action disclosed in the plaint for granting reliefs prayed for. Accordingly, the suit is dismissed. All the pending application are also dismissed.