1. This appeal has been preferred by the appellant-Bank against the interlocutory order dated 19th March, 2000 passed by the then Presiding Officer, D.R.T., Jabalpur in T.A. No. 329/98, whereby and whereunder the petitions filed by some of the respondents, who were defendant Nos.
4, 5, 7 and 10 in the original T.A. under Order 1 Rule 10(2) and Order 6 Rule 5 and Order 7 Rule 11 of the CPC read with Section 151 of the CPC have been allowed and appellant Bank was asked to delete the names of defendant Nos, 3 to 11 from the plaint by filing amendment petition and for misjoinder of defendant Nos. 4, 5, 7 and 8, appellant was asked to compensate them to pay Rs. 3, 000/- each to those defendants. The appellant Bank had filed the original suit for recovery of Rs. 23, 56, 281/- against all defendants including defendant No. 1 J.C. Mills Ltd. as borrower, defendant No. 2 as proprietor and defendant Nos. 3 to 11 as recipients of the goods through MTR. As per the agreement under documentary purchase limit i.e. DBP limit, the defendant No. 1 was allowed to send goods to the buyers with documents through the Bank.
The goods were transported by the transporter Sunil Road Lines i.e.
defendant No. 2 and bills and transport receipts were routed through the appellant-Bank to the respective buyers. The transporter was to supply the goods to the buyers/consignees after forwarding the MTR. In this respect, the money with regard to 299 MTRs remained unpaid and as such the suit was filed against all the defendant-respondents as mentioned above. Defendant Nos. 4, 5, 7 and 10 without filing written statement filed a petition under the said provisions of CPC asking better particulars and also for deletion of their names from the proceedings and also for rejection of plaint against them. It should be mentioned here that the Bank was asked by the Tribunal as claimed from the side of the defendants to file documents in support of their claims against the respondent-defendants, filed the petitions and those documents were filed, although belatedly, on the very day when the order was passed, but perhaps those documents had not been placed before the Presiding Officer by the concerned officials and as such it was noted in the impugned order by the Presiding Officer that the documents had not been filed by the Bank as already asked for.
2. At the very outset it should be mentioned here that although Order 6, Rule 5 of the CPC was in force previously, but the said provision has been deleted by the amendment of the CPC in the year 2002.
3. The impugned order has been challenged by the appellant-Bank on the following grounds: (a) The impugned order and the decision thereof is nothing but putting the cart before the horse, when the respondent-defendant Nos. 4, 5 and 7 had not yet filed their written statement and not given an opportunity to the appellant-Bank to adduce evidence in support of their claims.
(b) There was no scope for the Tribunal to ask the appellant to delete the names of those defendant-applicants, when it is the appellant being plaintiff knows better with whom he is to fight.
Moreover, defendant Nos. 3 and 11 who stand on the same footing as that of defendant Nos. 4, 5, 7 and 10 had also been asked to be deleted when they did not file any objection nor any application thereof.
4. Mr. V.D. Chauhan appearing for and on behalf of the contesting respondents have submitted that he would not claim that the defendant-respondents, who were applicants namely defendant Nos. 4, 5, 7 and 10 had no privity of contract with the Bank and as such deletion was proper rather he has very clearly admitted that if the claim of the Bank is substantiated, then by fiction of law, the defendant Nos. 3 to 11 does come within the purview of claim filed by the Bank, but his submission is that in the plaint itself the Bank has not made any assertion that the defendant Nos. 3 to 11 being consignees have received the goods, rather there were surmises in the plaint that the defendant Nos. 1 and 2 might have collusively sold the goods illegally to others and had defalcated the money and when surmises are there, then deletion as ordered by the learned Tribunal cannot be said to be bad in the eye of law.
5. In the light of the submissions made by Mr. Pradeep Kumar, Advocate for the appellant-Bank and Mr. V.D. Chauhan for and on behalf of the contesting respondents, I have perused the records and find that although some sort of surmises were there in the different paragraphs of the plaint, but collusion have been asserted from the very beginning against all the defendants. Moreover, in the objection filed against the applicants of the contesting defendant-respondents, it was specifically asserted that the defendant Nos. 3 to 11 had received the goods but did not deposit the price or value of the goods in the Bank with ulterior motive. In such circumstances, whether the defendant Nos.
3 to 11 had received the goods or not, when there is assertions by the Bank and also by the proprietor defendant No. 2, then the factum of liability of defendant Nos. 3 to 11 rests on the evidence as would be led by the Bank and controverted by the contesting respondents. It is too early to make a finding that the defendant Nos. 3 to 11 have been misjoined in the plaint. Moreover, such finding has been made, when defendant Nos. 3 and 11 has never made any assertions regarding their non-liability. In such circumstances, it has rightly been submitted by the learned Counsel for the appellant Bank that the impugned order is nothing but putting the cart before the horse. Moreover, it appears that in support of their contention, the Bank has already filed documents as asked for, but those have not been considered in the impugned order. If those documents would have been considered, then the order would have been otherwise as has been asserted from the side of the appellant Bank. The suit/proceeding was at the very nascent stage, the contesting defendants respondents had not filed their written statement and in such position, there was no scope to consider such applications of rejection of plaint or deleting of some of the defendants without ascertaining the liability, whether existing or not.
6. In support of the contention of the appellant, reference has been made to D. Ramchandran v. R.B. Janakiraman II Although that case related to an election petition, but the legal position as has been decided regarding Order 7 Rule 11, Order 6 Rule 16(2), etc. are applicable in the present case also. In the result, I hold and find that the impugned order is not sustainable in the eye of law and hence the same is set aside. But it is made clear that on merit regarding the liability nothing has been said by this Appellate Tribunal and there is also no scope to do so, but the points as raised from the side of the contesting defendants, if asserted in the written statement also, then the same should be decided on merit at the time of considering the claim of recovery of the appellant-Bank.
7. Stay order passed, if any, is hereby vacated and the parties through their Counsel are asked to appear before the D.R.T., Jabalpur on 2nd February, 2006.