- (1.) This is an application filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for rejecting the plaint filed in C.S. 140 of 2009.
(2.) The case of the defendant No. 1 is that in a suit for preparation of a scheme for administration of all the assets of the defendant No.1 and for management thereof, diverse reliefs have been sought. One of such relief is for an investigation into the dealings of all the assets and management of the defendant No.1. By virtue of an agreement dated 23rd September, 1998 between themselves, the plaintiff No. 2, the defendant No. 2 and one Anil Kumar Mahensaria agreed to develop premises No. 6, Wood Street, Kolkata- 700 016 which belonged to the defendant No. 1 under a Lease Deed for 50 years. To the said agreement, the defendant No. 1 was not a party but the right of the defendant No. 1 in the said property was dealt with. From a reading of the agreement of September 1998 it will appear that its pith and substance is development of the only asset, i.e. the building at 6, Wood Street, Calcutta of the defendant No.1. As the defendant No. 1 was not a party to the agreement there exists no cause of action against the defendant No. 1. The cause of action in the instant suit is based on two oral agreements and one written agreement. Therefore, the defendant No. 1 seeks rejection of the plaint. Reliance is placed on SHANTI PRASAD JAIN vs KALINGA TUBES LIMITED, 1965 AIR(SC) 1535 and V B RANGARAJ vs V B GOPALAKRISHNAN, 1992 AIR(SC) 453.
(3.) Opposing the said application, counsel for the plaintiff submits that partnership concept in companies is not unknown. As the action is derivative in nature the agreement of 23rd September, 1998 has been pleaded to give a composite picture. By the said agreement, the shareholding of the two groups in the defendant No. 1 was to undergo a change. No new share was to be issued. In fact, the said agreement has been acted upon and performed. There has been breach of the negative covenant by issuance of shares and as a shareholder of the defendant No.1, the suit has been filed for alleged increase in share capital. Leave has been taken under Order 1 Rule 8 of the Code of Civil Procedure. Therefore, all other shareholders have also been called to participate in the said proceedings. Rejection, therefore, cannot be in part. The suit has been filed by the plaintiffs, qua-shareholder and Director and although leave has been taken under Order 1 Rule 8 of the Code of Civil Procedure, no prayer has been made for revocation of such leave. No revocation has also been sought of leave granted under Order 2 Rule 2 of the Code of Civil Procedure. The leave sought is in the nature of framing of a scheme for the purpose of administration of the assets of the defendant No. 1. Therefore, the suit in effect is for management and administration as control of the defendant No. 1 has been taken by the minority shareholders.;