The company can file cases through its directors and can represent through its power of attorney
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
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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.
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
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.
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.
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.
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
Sirs Actually payment was made from Company account And Agreement to Sale was made in joint personal names of both directors Mr 'A' and Mr. 'B' In view of above should Question 1 Should Company file Money Recovery case through it's directors or accountant by giving him POA and Question 2 If yes then whether POA can be given by one director or need to be signed by both directiors Question 3 Should suit for specific performance be filed by Mr.'A' and Mr. 'B' jointly Please guide HARIOM
Then it will be in company name along with director as party and authorised representative of company
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
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.
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
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.
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.
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
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
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.
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.
Sirs Now ABC company has to take from Mr Ramesh say Rs.100000 /- along with interest @ 18% per annum since 2013 So the total amount receivable from him = Principal Amount 100000/- Add Interest 5 years 90,000/- Total 190000/- Less paid by him 40000/- Balance to take 150000/- Question 1 Now if ABC Company files Money Recovery then what Recovery figure must be shown in Recovery suit Recovery figure of Rs.100000/- plus interest thereon @ 18% per annum since 2013 till realization In such case ABC Compnay will have to pay Court fees 6430/- on Rs.100000/- OR Recovery figure of Rs.190,000/- plus interest thereon @ 18% per annum from date of filling of present suit till realization In such case ABC Componay will have to pay Court fees 8230/- on Rs.190000/- Question 2 The aforesaid Rs.40000/- was given by Mr Ramesh to ABC Company has been adjusted by ABC Compnay towards other dealing of Land compensation but this amount of Rs. 40000/- has been shown by Mr Ramesh in his books of accout as part repayment of Principal amount of Rs.100000/- So ABC Company does not intend to talk of this 40000/- (received from Mr Ramesh) in Money Recovery Suit and does not adjust in Recovery amount. And afterwards if Mr Ramesh proves that he has paid Rs.40000/- in this account then in Running Recovery Suit ABC Company may agree and deduct from total dues. Is it wrong ? or whether it weaken the case of Recovery Suit ? Please guide HARIOM
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
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
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
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.
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.
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
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.
Sirs As far as ‘bar by limitation’ is concerned I would like to get advice on following points :- In 2013 he has given undertaking on Stamp paper of Rs.100 that he will pay On [deleted] he met at office of Sub-Registrar for cancelling some other Old Sale-Agreements for which he orally promised that if We cancel our those old Sale-Agreements then he shall definitely pay old dues of 2013 and amongst others it is because of his promises that we agreed to cancel the sale-Agreements and we signed Cancellation Deed and registered Cancellation Deed and he gave witness therein and his photo, thumb impression and signatures are there as witness Question Whether his such Oral promise is enough to bring the case under limitation Secondly, Sir ji Fist time dealing was done in Mumbai and whole Money was paid in Mumbai But later on in 2015 Office of the Plaintiff was shifted to Pune On [deleted] when the opponent met and orally agreed to pay as stated above then also the Plaintiff’s Office was in Pune And still it is in Pune Question 2 Can the Money Recovery Suit be filed from Pune ? Please guide HARIOM
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
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]
Oral promise are difficult to prove but can be relied upon. Also the satmp paper for payment will be a good evidence
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.
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.
Sirs , In the present case I prefer to file suit for injunction and declaration u/s. 34 and 36 of Special Relief Act with prayers therein (a) to declare the second sale effected by same seller as illegal, (b) execution of cancellation deed signed by our party under coercion and undue pressure be declare to be treated as cancelled and (c) restraining Defendants by perpetual injunction from alienating the land to third persons till disposal of suit Please guide me what will be the court fee Whether Because the suit is filed for simplicitor injunction and declaration not susceptible by monetary value and on this ground whether Suit can be valued at Rs.1000/- as per Section 6(iv) (j) of Stamp Act for all purposes and court fees stamp of Rs.200/- is enough ? Please guide HARIOM
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.