SUDI RAM SHEO SHANKAR Vs. MADANLAL

JUDGEMENT

(1.) This order will govern the disposal of IA. Nos. 9487/97 and 8049/98. I.A. 9487/97 under Order XXXVII, Rule 3(7) read with Section 151, Civil Procedure Code and Section 5 of the Limitation Act has been filed by defendant No. 3 seeking condonation of 46 days delay in entering appearance. I.A. 8049/98 under Order XXXVII, Rule 2(3) and Section 151, Civil Procedure Code has been filed by the plaintiff seeking passing of decree for the suit amount against the defendants. It is alleged that although defendant No. 3 was served with summons on 20th September, 1995, it entered appearance only on 15th November, 1995. Defendants 1 and 2 were served by publication on 27th June, 1998, still defendant No. 1 has not entered appearance till date.

(2.) As is manifest from the order dated 3rd February, 2000 the Counsel of the plaintiff was asked to show how this suit against defendant No. 3 is maintainable under Order XXXVII, Civil Procedure Code. I have heard Mr. Surindra M. Mittal for plaintiff and Mr. Kailash Gambhir for defendant No. 3 on the point of maintainability of suit under the provisions of Order XXXVII, Civil Procedure Code as also on both the said I.As.

(3.) Suit was filed under Order XXXVII, Civil Procedure Code by the plaintiff for recovery of Rs. 30,91,453/- alleging that it is a registered partnership firm carrying on business as grain merchant and commission agent and Sunder Sunder Gupta who has signed and verified the plaint and instituted this suit, is one of the partners of the firm. Defendant No. 1 is the proprietor of M/s. Kissan Trading Co. and M/s. M.K.B. & Co., carrying on business as grain merchant at Barnala (Punjab). Defendant No. 2 is a broker dealing in food grains. On the guarantee of defendant No. 2 the defendant No. 1 sold 5960bagsofwheatallegedlybookedby him from Barnala for destinations in south under 8 Railway Receipts bearing Nos. 116088,116089,116090,116091, 116092,116094,116095 and 116096, all dated 18th August, 1992 to the plaintiff for Rs. 19,98,665 /-. He also received that amount Rs. 4 lakhs in cash, a cheque for Rs. 1.30 lakhs and 5 bank drafts for the total amount of Rs. 14,68,665/- which were got encashed by him through the bankers at Barnala. On receipt of the amount the defendant No. 1 endorsed said Railway Receipts issued by defendant No. 3 in favour of the plaintiff. It is alleged that the plaintiff sold through defendant No. 2 the consignments covered by the said RRs to different persons carrying business in Andhra Pradesh and Tamil Nadu. RRs alongwith the bills and other relevant documents were thereafter sent to the buyers through State Bank of Mysore, Naya Bazar, Delhi. It is further stated that when after expiry of normal transportation period the consignments did not reach the destinations in Andhra Pradesh and Tamil Nadu, on enquiries it was revealed that in fact no consignments covered by the said RRs were entrusted for transportation to the Railways at Barnala and RRs were issued in collusion with the Station Superintendent, Chief Goods Superintendent and Senior Officers of defendant No. 3 then posted at Barnala. Thereafter, the plaintiff got a notice dated 18th September, 1992 issued to defendant No. 3 and others. It is alleged that defendant No. 1 on being repeatedly asked by the plaintiff to refund the said amount issued 10 post-dated cheques for Rs. 2 lakhs each bearing Nos. 875004, 875005,875006,875007, 875008, 875009, 875010, 875011, 875012 and 875013 dated 30th September, 1992,15th October, 1992, 30th October, 1992,15th November, 1992,30th November, 1992,15th December, 1992,30th December, 1992, 15th January, 1993,30th January, 1993 and 15th February, 1993 respectively drawn on Punjab National Bank, Barnala. However, on presentation these cheques were returned with the remark 'insufficient funds'. In the meantime on being pressurised by defendant No. 2, defendant No. 1 gave in cash Rs. 3 lakhs on 2nd November, 1992 to the plaintiff against a receipt. Plaintiff was thus constrained to report the matter to PS Lahori Gate, Delhi on 10th May, 1993 and the case is being investigated by police. Plaintiff also got notices issued through Counsel to defendants 1 and 3. It is asserted that defendant No. 3 is vicariously liable to pay the amount to the plaintiff firm alongwith defendants 1 and 2. Suit amount of Rs. 30,91,453/- includes interest @ 21% p.a. upto 15th August, 1995.