This Misc application no MA 63 2022 is at the instance of the OP no 2, 3 and 4 who filed the petition in respect of the original case no CC 399 2022for expunging their names from the cause title of the case beingthe Directors of the OP company namely M/s S.M.C. Ltd. on the ground that the complainant impleaded them being mere Directors of theOP 1 company.

On perusal of case records, it appears that the OP1 is the landowner company and the OP 2, OP 3 and OP 4 are the Directors of that OP1 company. OP 5 is the Developer company and OP 6, OP 7, OP 8, OP 9 and OP 10 are the partners of the said Developer company (OP 5). The OP 11 and OP 12 are the Housing loan disbursing company and it’s Manager as per records.

In a glance of the complaint petition read with exhibits, it is apparent that the OP2, OP3 and OP4 being Directors of the landowner OP 1 Company, would often have the relevant information in the particular case. The OP 1 company is a juristic person. While it may be necessary to have it’s Directors to testify, the requirement of testimony by the Directors who might have discharged their duties and responsibilities towards the complainant, revolves around their unique positions. Being the Directors, they are responsible for the dealings with the complainant. Moreover, the landowner company through their Directors, are required to provide their evidences, based on the facts and circumstances of the allegations. The rules of evidence recognises that the Directors may adduce evidences as a fact witness. As a result, the evidences from the Directors cum OPs are required at any point of time during the adjudication process.

Also, the plain reading of the Sec. 168(2) of the Companies Act makes it clear that a Director of a company shall be liable for the Acts by him during his tenure in the company and liable even after resignation which occurred during his tenure.

Evidently the OP 2, OP 3 and OP 4 are the Directors of the OP 1 company as per their admitted positions. The Complainant alleged having paid an amount from the disbursed loan by OP11/OP12 housing finance company against a consideration money of 29,78,451/- as per sales agreement dated 06.03.2017 with the developer company and the landowner company.In terms of a development agreement between the developer and landowners, the proposed housing project was to be completed as per schedule. As per complaint, the complainant was not handed over the suit property till June 2020 in terms of sale agreement. It signifies that the elements of disputes are present centring around the developers, to which the landowner company is also a party through the development agreement.

It is true that the Directors are busy and conscious about their duties towards their customers but are not exempted from the legal proceedings and duty bound to attend the court proceedings either in person or through their Ld. Counsels. In Mr. Tonse, N.M.Pai Vs All Goa Manipal finance Group of Co Creditors association, 2013 (1) CCC 420 (NS) and in Byford Leading Ltd. Vs UOI (57) 1995 DLT 623 it is held by Hon’ble NCDRC, New Delhi and also by Delhi High Court inter alia that Directors of the company can be proceeded against, they being the incharge of the management and control of the affairs of the company and they are jointly and severally responsible in case of deficient in rendering services. This principle of law is fully applicable in the instant case.  The statement of objects and reasons of act speaks of speedy and simple redressal to consumer disputes. This is a case of alleged ‘deficiency of services’ which needs a holistic approach after giving fair opportunities to both.

In view of the above, hence we are of the opinion that the said MA petition for expunging the names of OP 2 OP3 and OP4 cannot be accepted pending the adjudication process. The landowner OP1 company being a juristic person needs to be represented by living persons i.e. OP2, OP3 and OP4 being the Directors of the company during progress of the case.

Hence the MA petition stands rejected on contest.

There will be no order as to cost.

Let a plain copy be given to the parties free of cost as per CPR.

The Ld. Advocate of the complainant filed copy of newspaper publication dated 28.01.2023 asking the Ops to appear on date. However, the Ops are absent on call. But they will get time to file W/V for which next date is fixed on 02.03.2023.