SOUMEN SEN,J. - (1.) This is an application for revocation of leave under Clause 12 of the Letters Patent and for dismissal of suit on the ground that the plaint does not disclose any cause of action against the defendant no.1.
(2.) The contention of the defendant no.1 is that according to the plaintiffs there was a pre-incorporation agreement between the plaintiff no.1 and the defendant no.1. The pre-incorporation agreement as alleged in paragraph 6 of the plaint does not exist. The plaintiffs have failed to produce any document which reflects the terms mentioned in paragraph 6 of the plaint. In absence of any document evidencing such pre-incorporation agreement it has to be assumed that the plaintiffs do not have any cause of action against the defendant No.1 based on such non-existent pre-incorporation agreement. The Court cannot grant any relief on a mythical hypothetical agreement.
(3.) Mr. P. Chidambaram, the learned Senior Counsel appearing on behalf of the petitioner submits that the Specific Relief Act , 1963 in Section 15(h) has recognised pre-incorporation agreement. A pre-incorporation agreement must be incorporated in the terms of the actual incorporation of the company. The Memorandum and Articles the Association of the plaintiff no.1 company do not contain any of the descriptions, discussions and/or representation averred in paragraph 6 of the plaint. Though, the plaint at paragraph 8 refers to MOA and AOA of the plaintiff no.1, the said documents were not produced along with the plaint. The plaintiff also does not rely upon the said document to assert that the alleged pre-incorporation agreement subsists. Inducing one person not to contract with other may, however, become tortious if unlawful means are used or threatened.;