HARI SHREE ENTERPRISES Vs. VIKAS HOUSING LTD

JUDGEMENT

(1.) The Plaintiff in the Suit is the Partnership Firm which has sued third parties for recovery of possession of the suit lands, payment of amounts by way of compensation for delay as well as by way of mesne profits. The Suit has been filed by one Jitendra Chandarana shown as the Constituted Attorney of the Plaintiff-Firm. The Power of Attorney annexed to the Plaint has been executed by one K. V. Mohan shown as one of the partners of the Firm and as the authorised signatory of two other partners of the Firm V. Rajagopal and Mr. Rajiv Sinha, one of whom, V. Rajagopal, has been adjudged insolvent. The Plaintiff-Firm stood dissolved prior to the filing of the Suit upon the said partner having been adjudged insolvent. The Plaintiff-Firm, therefore, could not sue as shown in the Plaint.

(2.) The Plaintiff itself has taken out the above Chamber Summons for amendment to the Plaint, including the title of the Suit. The Plaintiff now desires to sue through one of its partners as the partner of the Plaintiff-Firm, since dissolved. The said K. V. Mohan has not sought the sue as a partner of the firm on behalf of the dissolved firm. The partner of the firm seeking to sue is a Limited Company. The Limited Company is sought to be represented by its Managing Director, the same K. V. Mohan. The Plaintiff has sought to join the other two partners Rajiv Sinha and the Official Assignee on behalf of the insolvent partner V. Rajagopal as Defendants. Mr. Kapadia on behalf of the Plaintiff argued that the Official Assignee should not be joined as party Plaintiff and hence is sought to be joined as Defendant. The consent of the Official Assignee to sue on behalf of the dissolved Firm for recovery of possession and monies from third party is not obtained. However it may be taken that the Official Assignee is brought on record only as a necessary and proper party, representing the insolvent partner of the dissolved Firm. Rajiv Sinha is stated to be residing in Bihar and is hence to be brought on record as a Defendant.

(3.) The authority of K. V. Mohan as Managing Director is also challenged. K. V. Mohan has not shown how he was appointed Managing Director of the said Company. Section 2 (26) of the Companies Act defines the Managing Director thus: