D R PATEL Vs. A S DIMELLOW

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit is allowed in part. Plaintiff's prayer is that the decree now passed against defendant No. 1 in the capacity of Managing Director should be converted into one against him personally, on the ground, that he was the promoter and continued to be personally liable as his liability for the plaintiff's claim was not taken over by the company after it was constituted, and has also a prayer in regard to costs, aS it was, the plaintiff claimed Rs. 45,000/- but actually got a decree for Rs. 22,614/-. The Court ordered costs and pleader's fee for each party in proportion to its success; as each won about half, the costs nearly, but not quite, cancelled mutually. The plaintiff-appellant cannot therefore make any grievance on this ground.

(2.) There is no prayer by the plaintiff in respect of the disallowed portion of his claim, nor is there any cross appeal or cross objection by the defendant- respondent in regard to the portion of the claim that has been actually allowed. This is now impossible for him to challenge the merits of the trial Court's decision. The controversy has narrowed down to whether a promoter is personally liable for the price of the building work found to have been ordered by him before, but actually executed by the building contractor after the company wag constituted and registered.

(3.) The relevant facts are that the defendant-respondent No. 1 came to Gwalior in 1944 and began promoting the two companies impleaded as defendants Nos. 2 and 3. The actual registration was on 26-10-1944 but earlier in July, August 1944 the defendant No. 1 as promoter had ordered verbally the plaintiff to put up certain buildings for the company. On the strength of these orders the buildings were put up after November 1944, and part of the price paid in March and May 1945. The company had not been functioning, nor had it by any resolution taken over the liability created by the order given by the promoter in July and August 1944 before the company came into existence. However, the payments were made in the name of the Secretary of the company.