MUSIC SYSTEMS Vs. DENA BANK

JUDGEMENT

(1.) This revision petition is directed against the judgment of the learned Additional District Judge, Delhi dated 1/11/1996, thereby dismissing the application of the petitioner-defendant praying for leave to defend a summary suit filed by the plaintiff under Order XXXVII of the Civil Procedure Code and consequently decreeing the suit of the plaintiff in the sum of Rs.3,56,537.00 along with pendente lite and future interest at the rate of 18.5% per annum and proportionate costs.

(2.) Briefly, the facts leading to the revision petition are that the respondent bank had filed a suit against the petitioner-defendant for recovery of Rs.3,56,737.00 with interest at the rate of 18.5% per annum with costs with the averments that the Bombay Branch of the respondent bank at the request of M/s. Oriental Melodies sanctioned a cash credit hypothecation limit and a bill discounting facility to M/s. Oriental Melodies and under the said facility M/s. Oriental Melodies discounted 22 bills of exchange (hundies) aggregating to a sum of Rs.2,52,645.12 drawn by the said M/s. Oriental Melodies on the petitioner and against the said bills of exchange moneys were advanced to M/s. Oriental Melodies, Bombay being the drawer and the respondent bank being the payee of the said bills which had been duly accepted by the drawee/petitioner. The bills of exchange were presented to the petitioner for payment on the respective dates through the State Bank of India, Connaught Circus, New Delhi but the same were dishonoured by non-payment. As the defendant has failed and neglected to pay the amount of the bills, which fact was recorded through the Notary Public in his report dated 26/5/1984, plaintiff filed the suit.

(3.) The petitioner-defendant being served of the summons of appearance in the prescribed form, entered appearance and filed an application for leave to defend with the averments and allegations that triable issues arise entitling them to unconditional leave to defend; the plaintiff respondent had filed a suit bearing No.279/85 against M/s. Oriental Melodies, Bombay for recovery of the suit amount and as the issues in the said suit and the present suit were substantially the same, the present suit is liable to be stayed; the bills of exchange had been accepted by the petitioner-defendant in respect of the supplies made by M/s. Oriental Melodies the distributor of Northern India territory and that the hundies had been accepted in anticipation that the goods viz pre-recorded audio cassettes tapes supplied by M/s. Oriental Melodies would be sold within a period of 30 days but owing to the manufacturing/recording defect in the said cassettes their sale did not materialise and this fact was brought to the notice of M/s. Oriental Melodies and they were requested to take back the goods and the petitioner-defendant had negotiated with M/s. Oriental Melodies in terms of the instructions dated 17/1/1984 and all the unsold goods were returned back to them. Accordingly it was pleaded that no amount is now due and payable to the respondent bank. The suit was also stated to be bad for mis-joinder of causes of action as each hundy is a distinctive negotiable instrument and separate advolram court fee was required to be paid on the value of each hundi. The suit was also stated to be bad for non-joinder of the necessary party i.e. M/s. Oriental Melodies, the principal debtor.