ORDER :- A short question arises for consideration in the present revision petition.

2. The question is, under what circumstances and on what pleadings, a director of a company can be made liable in an action for recovery of damages alleging breach of contract by the company.

3. Petitioner filed a suit stating that Dinesh Mirchandani was carrying on business as the 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 between the parties to recompense an agreed sum to the plaintiff. This correspondence was exchanged between the plaintiff and Sanjay Kumar, the director of defendant No. 1. It was further stated that on behalf of defendant No. 1, Sanjay Kumar agreed to pay professional fee of Rs. 15 lacs, expenses incurred by the petitioner in sum of Rs. 1.1 lacs, besides paying service tax. Alleging that the said agreement was not honoured, suit was filed seeking recovery of Rs. 11.61 lacs stated to be due and payable under invoices raised. Damages on account of breach of contract in sum of Rs. 6 lacs was claimed.

4. Total suit amount is Rs. 17.61 lacs.

5. Sanjay Kumar filed an application under Order 7, Rule 11 praying that qua him, plaint be rejected.

6. The learned trial Judge, after hearing arguments, vide order dated 16-11-2006 has struck off the name of Sanjay Kumar from the array of defendants. The effect thereof is that the suit survives only against defendant No. 1.

7. At the outset I may note that it is doubtful whether a sole proprietary firm is entitled to maintain an action. A sole proprietary firm is not a juristic entity. Correct description of the plaintiff ought to have been Dinesh Mirchandani carrying on business as sole proprietor of Tristar Consultants.

8. Be that as it may, it would be open to the plaintiff to correctly describe who the plaintiff is.

9. Another fact may be recorded. Rejection of a plaint is a decree as per definition of a decree under 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 various persons whether jointly, severally or in the alternative and if separate suits were brought against such persons, common questions of law or fact would arise, such persons may be joint in one suit as defendants.

12. Sub-rule (2) of Rule 10 of Order 1 permits a Court, at any stage of the proceedings, either upon or without any application of either party to strike out a person improperly joined as a defendant.

13. In a suit for recovery of money, only such persons can be impleaded as defendants against whom averments are made which on proof would entitle the plaintiff to a decree whether jointly or severally or in the alternative against the said persons named as d

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