• Who can file cases

Sirs,

ABC Pvt Ltd. is made of Two directors Mr 'A' and Mr. 'B'.

ABC Pvt Limited company gave advance for purchase of Two Flats to Mr Ramesh 

Mr Ramesh made Agreement to Sale of one Flat jointly in name of Two Directors Mr ‘A’ and Mr ‘B’ but Mr Ramesh refused to register the same 

For the balance amount Mr. Ramesh refused to sell other Flat and refused to give back Money to Mr ‘A’ and Mr ‘B’ 

Hence Mr ‘A’ and Mr ‘B’ decided to file cases against Mr Ramesh 

The Question arise who can file following cases against Mr Ramesh 

Either Pvt Ltd. Company 
or Mr ‘A’ and Mr ‘B’ jointly 
or Any one of Mr ‘A’ and Mr ‘B’ 

They want to file following cases :- 

1. Suit for injunction and declaration 

2. Money Recovery case for balance amount 

3. Cheating case u/s. 420 of IPC

Who can file above cases 
Either Pvt Ltd. Company 
or Mr ‘A’ and Mr ‘B’ jointly 
or Any one of Mr ‘A’ and Mr ‘B’ 

Please guide 
HARIOM
Asked 5 years ago in Civil Law

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35 Answers

The company can file cases through its directors and can represent through its power of attorney

 

Suneel Moudgil
Advocate, Panipat
2380 Answers
6 Consultations

4.8 on 5.0

Did A n B were purchasing for company and board resolution passed for it ? What is the language of agreement to sale.

If purchase on behalf of company by authorised person than case will file by companies authorise person. Otherwise either of them. One can giive attorney to other.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Make company as the first party and other two directors as party no. 2 and 3; so that in any situation case is not dismissed for non joinder of appropriate parties.

 

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Company should file case against ramesh through poa. 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

The company , MR A and B should jointly file case against Ramesh 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

The company director board can decide the person for filing the case on behalf of the company.  It may be one director or both / another authorized person, but Company should be one of the party in the suit.

For filing of suit

First decided whether the company need flat or advance amount?

File Suit for specific performance and injunction.

Cheating case can file only at criminal court. But this case is not fit case for cheating. This case comes under the Breach of contract.

‘Cheating’ may be defined as a dishonest act in order to gain advantage. Section 420 of Indian Penal Code provides that whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The offence cheating is proceeded under criminal law.

Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. The remedy for breach of contract is under civil law only.

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

1. It is to be seen whether A and B entered into the sale agreement in their individual capacity or as Director of the Company. If as Director of the company they signed the sale agreement then the suit is to be filed by the Company only.

2. Since company is fling the suit then either of A or B can sign the plaint representing the company in the capacity of the Director.

3. The suit would suit for specific performance of contract .

4. no case of cheating lies under the present circumstances.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Mr A and B will file if the agreement to sale was made in their name not in companies name.

Suit for specific relief act  has to be filed for registration of flat in your favour. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

If the transaction is of private ltd company then it will be in respect of pvt ltd company. If it's individual then in individual capacity

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Then it will be in company name along with director as party and authorised representative of company

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

If agreement for sale was made in favour of Aa d B jointly then they should file suit for specific performance jointly . Company should be made party to the suit 

 

don’t file it in name of company alone 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. The plaint is to be signed by Director unless they have given POA  to any of the staffs.

2. POA is to be given by one Director provided there is Board Resolution in support thereof.

3. The company will file the suit , not the Directors The directors are representative of the company only. 

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1. the company can file case/complaint through its directors or POA (accountant/manager etc)

 2. company will pass a resolution and will authorize a director to act/initiate legal action, and then said director will issue POA in the name of an employee, if desired, or he/she himself/herself can start litigation.

3. POA can file any suit/complaint on behalf of the company

 

 

Suneel Moudgil
Advocate, Panipat
2380 Answers
6 Consultations

4.8 on 5.0

1. See in this case it is better to file recovery through company.

2. It should be signed by both the directors.

3. Yes joint suit has to be filed.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

What is the need for recovery suit, file FIR, fastest recovery. Any case (FIR, recovery, SP) will file by A & or B. Jointly or through POA to act on behalf of either A or B. 

Using company fund for purchase in personal itself an offense under companies act.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. the amount advanced by company to A and B will be considered as loan in the books of account of both [ie lender Company and borrower directors A and B]

2. A and B can file suit in their personal names

 

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

Dear client 

You can make three plaintiffs in the suit for declaration and permanent Injunction and money recovery case and both these issue can be framed in a single suit no need to file two different suit as both are related to same cause of action and between the same parties.

If you file two different suits the second suit which you file latter is likely to get dismissed.

And for case of fraud that ie 420 IPC you can file a formal complaint to the police station and it can be filed by either Mr.  A or Mr. B

 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

The company can file a suit against Ramesh represented by its authorised representative.

Since the relief sought is flats, hence a suit for specific performance of contract can be filed along with an application seeking temporary injunction as an interim relief till the disposal of main suit restraining the defendant from alienating or encumbering the property in any manner.

Cheating case may not be entertained by police since this is civil nature.

 

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Since the company has paid the advance amount it can file a suit for specific performance of contract through its authorised representative, which will be decided by the company by passing a resolution to this effect.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Recovery amount will be the same but you can levy interest on the same if you have any agreement of the said interest. Yes court fees have to be beared by plantiff company.  Yes if such 40000/- payment is proved by opponents then adverse inference will be drawn against you by court

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

In response to your Principal question, I had opined that A and B can file the suit individually in their names

However your follow up question shows that all transactions are routed through company 

So I modify my response. The suit is to be filed by ABC and the two directors will be co plaintiffs

1. Claim is on principal minus part payment received plus interest 

So court fees will be on 1.5 lacs (1.9 - 40k) plus interest @18% calculated on this figure 

2. Plaintiff can claim whatever he wants in his suit. Doesn't matter what the defendant shows in his books. So company can either claim 1.5 lacs with interest as above or Rs. 1.9 lacs with interest as above and accordingly court fees have to be paid

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

You have to claim Rs 1 lakh with interest at 18 per cent per annum from 2013 till date 

 

2) I presume there is acknowledgment of liability from Ramesh failing which claim would be barred by limitation 

 

3) further interest at 18 per cent must be agreed between parties 

 

4) the covering letter for payment of Rs 40 K must have mentioned for  what purpose payment has been made . You must adjust if accordingly 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

In the money recovery suit, the company has to file a suit for the amount it is due to get from the debtor, i.e., Rs. 1,50,000/-

 

The company can decide about the money to be received from the debtor based on the prevailing circumstances and other matters can be decided in the trial proceedings.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

The recovery suit is barred by limitation firstly if amount is due from 2013 and there is no acknowledgement of debt.

secondly the recovery should be of Rs.100000/- plus interest thereon @ 18% per annum since 2013 if court condone the delay.

Thirdly amount given in name of director should not be adjusted.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Question 1

File recovery suit for principal amount 100000, and pray for payment of interest to the court

Question 2

If files for 100000 do not agree for 40000 during the case, let the court decide the same

 

Suneel Moudgil
Advocate, Panipat
2380 Answers
6 Consultations

4.8 on 5.0

Interest will decide by court that will be prevailing market rate. If receipt of 40000/- available than recovery amount will be only 60,000.

Suit will file for recovery of 60k.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Oral promise is not sufficient to save limitation 

 

2) your claim is barred by limitation 

 

3) suit can be filed in Pune or in Mumbai 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. yes it can be averred in the plaint that the time for repayment was orally extended by the parties from time to time and the cause of action to file the suit arose when the defendant began to ignore the request of the plaintiff to repay the amount

2. section 20 of CPC states as under:

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction --

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry or business, or personally work for gain, as aforesaid, acquiesce in such institution ; or

(c) the cause of action, wholly or in part, arises.

1[***]

 

2[Explanation] .--A corporation shall be deemed to carry on business at its sole or principal office in3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

 

3. this means suit can be filed 

a. where defendant resides or works

b. if there are more than one defendants and any of the defendant do not reside in the local limits of jurisdiction of the court where the other defendant resides or works, then upon leave of the court, the case can be filed at a place where any one such defendant resides within its jurisdiction. 

c. where cause of action arose

in case of company, as per the explanation, the case can be filed where the company has its principal office or if the cause of action arose in Mumbai then if the company has a subordinate office in Mumbai, then case can be filed in Mumbai

 

4. in your case the money was paid in Mumbai and the deal happened in Mumbai, so cause of action arose in Mumbai. So case can be filed in Mumbai. However if you want to file the case elsewhere you need to check the address of the defendants [as the provision uses the expression 'or', meaning case can be filed in any place falling under clause a, b or c of section 20]

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

Oral promise are difficult to prove but can be relied upon.  Also the satmp paper for payment will be a good evidence

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

The oral promise can be denied by him at this stage making the claim itself as invalid and thus your recovery suit may also be barred limitation.

 

 

Since the cause of action originally took place at Mumbai then Mumbai would be the correct and proper jurisdiction.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. The acknowledgement needs to be proved before court, though written notices of recovery from your side are required to support case effectively.

2. 

 It has to be filed where the respondent is staying or working having business. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

The court fee is the state subject.

You may enquire about the stamp duty payable from a local advocate who will be able to guide you further.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Yes it a good step stated above.  The court Fee will less as depending on your property 

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Suit can be valued at Rs 1000 and court fees stamp of Rs 200 affixed 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

6(iv)(d) is applicable and not 6(iv)(j)

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

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