Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.554/2019 in Suit No.4503/2008
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 554 OF 2019
CNR NO.: MHCC010027102019
IN
SUIT NO. 4503 OF 2008
Satish Kirtane ...Plaintiff
V/s.
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
And others ...Defendants
Appearances:
Advocate Mr. Satish C. Kekane for the plaintiff.
Advocate Mr. S.R. Singh for defendant No.1.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 27th AUGUST, 2019.
ORAL ORDER
1. Perused application and say. Heard argument advocates for both
parties.
2. Defendant Nos. 2 to 10 have contended that the defendant no.1 is
a juristic person under the law and as such can sue or be sued
independently. They have further stated that defendant Nos. 2 to 10 are
the Officers of the defendant No.1 Company and they are impleaded
malafidely to harass them. They have further stated that no case for any
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:2: Ch. Sum. No.554/2019 in Suit No.4503/2008
joint or several liability of defendant Nos. 2 to 10 is made out and
prayed that their names be deleted.
3. Plaintiff has stated that the present application is taken out after
ten years of filing the suit with intention to harass him. Plaintiff has
further stated that it is not explained how defendant No.1 is making
submissions on behalf of defendant Nos. 2 to 10 without any authority
of defendant Nos. 2 to 10 as defendant No.1 Company alone has taken
out this Chamber Summons without bringing any signatures on behalf
of defendant Nos. 2 to 10. Plaintiff has further stated that defendant
Nos. 2 to 10 are necessary and proper parties to the suit. Plaintiff has
further stated that he has set out claim against defendant Nos. 2 to 10
who are Office bearers. Plaintiff has further stated that letter dated 16th
June, 2006 is issued by defendant No.3. Plaintiff has further stated that
defendant No.1 is a juristic person and defendant Nos. 2 to 10 are the
responsible Officers for denying plaintiff's lawful rights, therefore,
prayed for rejection of the Chamber Summons.
4. Ld. Advocate for the defendant submitted judgment of the
Hon'ble Delhi High Court in case of M/S. Faith Mercantile Pvt. Ltd. vs.
M/S Simbhaoli Sugars Ltd. & Ors in CS(COMM) 280/2017 decided
on 20.08.2018, in which it is held that, “Hence, the directors of the
company are agents, trustees or representatives of the Company. Under
Section 230 of the Indian Contract Act, unless an agent personally binds
himself, an agent is not personally liable for the contracts entered by him
on behalf of his principal. Similarly, personal liability of a director would
only arise where he makes a false averment regarding the company and
induces a third party to advance a loan/money to the company. It is only
on proof of fraudulent misrepresentation that a director may be personally
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liable to a third party. In that case, there would not be a liability under
the contract but it would be an action in tort.” In the case in hand
plaintiff has alleged in para 2 of the plaint that, 'defendant Nos. 2 to 10
are hold responsible positions and taking decisions for defendant No.1
Company. In para 7 of the plaint it is held that, defendant No.2 was the
topmost managerial level and by letter dated 30.07.2005 he was
apprised of all the tactics, ploys and modus operandi of the DSAs to the
defendant No.2, but defendant No.2 took no efforts to resolve the
grievances. In para 9 of the plaint it is held that, defendant Nos. 2 to 10
refused to accept renewal cheques sent by the customers. In para 10(h)
of the plaint plaintiff has alleged that, defendant Nos. 2, 3, 5, 6 and 8
were present in the meeting and plaintiff was assured that corrective
measures will be taken. In para 14 of the plaint also it is alleged that,
the defendants took no action but continued to abet and aid the
malpractices in the matter of issuing policies and renewal of policies. In
para Nos. 15 and 17 also there are allegations against the defendants.
Therefore, as there are allegations regarding failure by defendants to
perform their duties, it appears defendants are proper parties to the
suit. Hence, it appears facts of the cited case and in hand are different,
therefore, this case law is not applicable to the case.
5. It appears from the plaint, there are allegations against defendant
Nos. 2 to 10. Moreover, defendant Nos. 2 to 10 are the responsible
persons for the conduct of defendant No.1 Company. Therefore, it
appears defendant Nos. 2 to 10 are proper parties to the suit, hence, it
will not be proper to allow Chamber Summons. Hence, following
order:
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:4: Ch. Sum. No.554/2019 in Suit No.4503/2008
ORDER
Chamber Summons No. 554 of 2019 is rejected.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 27.08.2019. City Civil Court,
Gr. Bombay.
Dictated on : 27.08.2019
Transcribed on : 27.08.2019
Signed on : 27.08.2019
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:5: Ch. Sum. No.554/2019 in Suit No.4503/2008
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.08.2019 At 1:57 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
27.08.2019
Judgment/Order signed by P.O. on 27.08.2019
Judgment/Order uploaded on 29.08.2019
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