9911796707
TMI Blog2007 (3) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... sole proprietor of the plaintiff. It was stated that the plaintiff is carrying on business of providing human resources facilitation by locating right candidates suitable for top level managerial positions. It was stated that defendant No. 1, represented through as also acting through Sanjay Kumar, its director, (Defendant No. 2) held personal meetings as also exchanged proposals through e-mails. It was stated that defendant No. 2 negotiated and concluded a written contract. As per the said contract, plaintiff was to identify and recommend to defendant No. 1, after interviewing, suitable candidates. Plaintiff did so but defendants cancelled the contract. It was stated that post cancellation of the contract, correspondence was exchanged bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 2 sub-section 2 of the Code of Civil Procedure. But I am not relegating parties to the remedy of appeal for the reason notwithstanding the fact that the Court was considering an application under Order 7 Rule 11 of the Code of Civil Procedure filed by defendant No. 2 i.e . Dinesh Kumar, the Court has struck off his name from the array of defendants. 10. Learned counsel for the parties treated the order being under Order 1 Rule 10(2) of the Code of Civil Procedure i.e . addition and deletion of parties in a suit. 11. Order 1 Rule 3 of the Code of Civil Procedure requires that where right to relief in respect of or arising out of the same Act or transaction or series of acts or transactions is alleged to exist against va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Following passage has been relied upon: "Through an agent as such is not a servant, a servant is generally for some purposes his master s implied agent, the extent of the agency depending upon the duties or position of the servant. It is again true that a director of a company is not a servant but an agent inasmuch as the company cannot act in its own person but has only to act through directors who qua the company have the relationship of an agent to its capacity. Managing Director may have a dual capacity." 18. I am afraid, learned counsel for the petitioner has got it all wrong. 19. It is settled law that a company is a juristic person. Therefore, a company has to Act through a living human being. Collectively, decisions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are concluded by the agent on behalf of his principal with third parties would bind the principal to the third party. 25. Section 230 of the Indian Contract Act, 1872 reads as under : " Agent cannot personally enforce, nor be bound by, contracts on behalf of principal. In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary. Such a contract shall be presumed to exist in the following cases: (1)where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2)where the agent does not disclose the name of his principal; (3)w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third party. 30. But this liability would not flow from a contract but would flow in an action at tort. The tort being of misrepresentation of inducement and causing injury to the third party having induced the third party to part with money. 31. Decision cited by learned counsel for the petitioner is clearly distinguishable. In the said decision, article 139 of the articles of association of the company in question enjoined that notwithstanding anything contained in the articles, the managing director is expressly allowed to work for and contract on behalf of the company as an agent of the company for which remuneration as agreed from time to time could be paid. 32. Under an agreement, in addition to monthly salary and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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