IN THE MADHYA PRADESH HIGH COURT 

Mahajan for the petitioner. 

Baheti for the respondent. 

JUDGMENT 

N. K. JAIN J. - Heard. 

By the impugned order, the trial court has decided a preliminary issue as to Whether the petitioner and respondents Nos. 3 to 5 have been wrongly joined as party defendants in the case. The issue has been decided in favour of the plaintiffs. 

Respondent No. 1 as also respondent No. 2 are private limited companies. The petitioner and respondents Nos. 3 to 5 are the directors of respondent No. 2-company. The suit is brought by respondent No. 1 against the petitioner and respondents Nos. 2 to 5 for recovery of certain amounts due on account of the goods allegedly purchased on credit by the defendants. It is averred by the plaintiff that all the defendants are jointly and severally liable for the debt. 

The defendants have resisted the suit. They raised objection that the petitioner and respondents Nos. 3 to 5 have been wrongly impleaded in the suit inasmuch as they are not severally liable for the debt in question. The court below without deciding the liability of the defendants on the merits has however, held that these defendants are necessary parties to the suit and accordingly answered the issue. 

I have heard learned counsel for the Parties. 

Shri Mahajan has drawn by attention towards section 45 of the Companies Act, 1956, which provides that when a private company carries on business for more than six complete months with members below two in number, the directors of the company shall be severally liable for the payment of the debt of the company contracted during that period and, may be severally sued therefor. Learned counsel pointed out that at no point of time defendant No. 1-company did carry on business with members below the legal minimum. Therefore, counsel contended, the directors of the company cannot be made severally liable for the debt in question. 

As already pointed out, the court below by its order has not adjudicated upon the question of liability of the directors of the company. It has merely held that they are necessary parties to the suit. In this context the averments of the plaint are relevant. In para. 2 thereof, the plaintiff has categorically averred that defendant No. 1-company as also its directors, defendants Nos. 2 to 5 are jointly and severally liable for the debt in question. That being so, it cannot be said that defendants Nos. 2 to 5 are not necessary parties to the case. It is a different matter that after taking evidence and on evaluation thereof the court may arrive at a different conclusion but all that is to be decided after trial and not at this stage. 

Section 45 of the Companies Act speaks of the personal liability of the directors of the company in a given situation. The section is not exhausted. It does not say that in no other case the directors of the company can be made severally liable. It is for the plaintiff being dominus litus, to choose persons of his choice to be sued. If he ultimately fails in establishing his claim against defendants Nos. 2 to 5 not only his suit may be dismissed, he may be saddled with costs. No interference is, however, called for at this stage. 

The revision thus fails and is dismissed but without any orders as to costs.