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2015 DIGILAW 407 (HP)

Mukut Hotels & Resorts Pvt. Ltd. v. Khullar Resorts Pvt. Ltd.

2015-04-27

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The plaintiff-applicant through this application has sought deletion of defendants No. 4 to 9 from the array of defendants. The principal ground on which the disarraying of the aforesaid defendants is sought, has been concerted to be agitated in paragraph 5 of the application. The plea is couched in the factum of defendants No. 4 to 9 extantly ceasing to be Directors of non-applicant/defendant No.1. Uncontrovertedly, the suit property is owned by a Private Limited Company, nomenclatured as M/s Khullar Resorts Private Limited. It through its managing director executed an agreement to sell the suit property to the plaintiff. Part of the sale consideration has come to be received by M/s Khullar Resorts Pvt. Ltd. and the remaining part of it has been agreed to be paid at the time of execution of the registered deed of conveyance inter se the plaintiff and defendants. The factum of defendants No. 4 to 9 ceasing to have any subsisting interest in the defendant No.1/Company has been hotly contested by the counsel for the defendant No. 4. Consequently, it has been urged by the counsel for the defendant No. 4 that the prayer made in the application for seeking their deletion is ungrantable. Rather the learned counsel in his reply to the application filed under Order 1 Rule 10(2) has contended therein that defendants No. 4, 5, 6, 8 and 9 continue to have a subsisting interest in the company, besides he denies that the defendant No. 4 has tendered his resignation as the Managing Director of defendant No.1/company. 2. The counsel for the plaintiff applicant though has relied upon the fact portrayed by the photocopy of the resignation letter of defendants No. 4, 5, 6, 8 and 9 and also upon the factum of annual returns of the Company instituted before the competent authority and theirs displaying the non occurrence of the names of defendants No. 4, 5, 6, 8 and 9 to succor his submission that hence with their ceasing to have any extant interest in the private limited company sued as defendant No.1, their retention in the array of defendants is purposeless. Nonetheless, the said fact itself would not connote that defendants No. 4, 5, 6, 8 and 9, have abdicated/relinquished their shares therein hence ceased to have any subsisting interest in the share holding of the Company. Nonetheless, the said fact itself would not connote that defendants No. 4, 5, 6, 8 and 9, have abdicated/relinquished their shares therein hence ceased to have any subsisting interest in the share holding of the Company. In substantiation of the aforesaid fact the counsel for the non applicants No. 1 to 3 has adverted to the existence of certain documents portraying the transfer/alienation of shares by the defendants aforesaid in the private limited company. He then contends that the share transfer certificates per se mark the fact of abdication or relinquishment of interest by the defendants aforesaid in the share holdings of the private limited company. However, the said fact too has been contested by the learned counsel for defendants No. 4, 5, 6, 8 and 9, inasmuch, as, the said share transfer certificates have been contended to be fictitious. In the face of contest having emanated inter se the plaintiff and defendants No. 4, 5, 6, 8 and 9 qua the factum of theirs continuing to hence or conversely ceasing to have any subsisting interest in the share holdings of the company corpus whereof is agreed to be alienated in favour of the plaintiff by defendant No. 1 while acting through defendant No. 4. In sequel, when clinching proof at this stage does not emanate qua the factum of either the defendants proposed to be deleted from the array of defendants having resigned as Directors of the private limited company or theirs having abdicated their shares in the private limited company, as a corollary, it would be insagacious to proceed to hence render an invincible determination that their retention in the array of defendants is unnecessary. Moreover, when a decree for specific performance, if it comes to be rendered in favour of the plaintiff-Company, the sale consideration qua the suit property hence would be transferred only to the company in which the impleaded defendants alone would have a proportionate share in consonance with their share holdings in the assets of defendant No.1. Moreover, when a decree for specific performance, if it comes to be rendered in favour of the plaintiff-Company, the sale consideration qua the suit property hence would be transferred only to the company in which the impleaded defendants alone would have a proportionate share in consonance with their share holdings in the assets of defendant No.1. In sequel, if the defendants No. 4, 5, 6, 8 and 9 are permitted to be disarrayed from the array of defendants then obviously the sale consideration to be paid by the plaintiff to the defendant No. 1 in case of rendition of a decree of specific performance qua the suit property would not pass to the defendants aforesaid despite the fact of theirs not having been adequately established at this stage to have lost or abdicated any part of their share in the share holdings of defendant No.1. Consequently, at this stage, it is not deemed fit that defendants No. 4, 5, 6, 8 and 9 be disarrayed from the array of defendants as their deimpleadment from the array of defendants would prejudice their interest in the suit property to the extent as enunciated hereinabove. The appropriate course in the interest of justice would be to strike an issue inter se the parties at contest qua the defendants aforesaid having come to be properly joined and evidence apposite to it being adduced. 3. Now, matter be listed before the Additional Registrar (Judicial) for admission and denial.