K P SOLVEX LTD Vs. HYDERABAD INDUSTRIES LTD

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated 15.3.2005 passed by the learned Additional District Judge whereby the suit no. (hereinafter to be referred as the "subsequent suit.) filed by the appellant- plaintiff(hereinafter to be referred to as "the plaintiff.) for setting aside of an ex parte decree dated 13th October,1993 passed by this Court against it in suit no.89 of 1987(hereinafter to be referred as "the former suit.) filed by the respondent no.1 herein(hereinafter to be referred to as "the plaintiff of the former suit.) for recovery of Rs. 3,75,000/- with interest against the plaintiff and respondents no. 2 and 3 herein, who were impleaded in the former suit as defendants no. 1 and 2 respectively and in the subsequent suit as defendants no. 2 and 3.

(2.) THE facts, as per the case of the the plaintiff, which led to the filing of the suit out of which the present appeal arose, may briefly be stated before proceeding further. THE plaintiff of the former suit, which was earlier known as Hyderabad Asbestos Cement Products Limited and was into the business of making asbestos cement sheets, had appointed M/s Gupta Tractors and Traders(defendant no.3 in the subsequent suit),a proprietorship concern of defendant no. 2 in the subsequent suit, Ashok Kumar Gupta, as its agent/stockist at Jhansi for sale of asbestos cement sheets made by it. (Reference to these two defendants shall hereinafter be collectively made as "the stockist.). THE plaintiff had placed an order on the stockist on 25th April, 1984 for supply of asbestos cement sheets manufactured and sold by the plaintiff of the former suit. As desired by the stockist the plaintiff had made an advance payment of Rs.30,000 to the stockist by way of a bank draft favouring the plaintiff of the former suit and thereafter the stockist placed the order on the plaintiff of the former suit which in turn had supplied the material to the plaintiff. THE plaintiff made the payment of that material to the stockist as per the instructions of the plaintiff of the former suit.

(3.) THE dismissal of that application under Order IX Rule 13 CPC was not challenged in appeal and instead in view of the above-quoted observation of the learned Single Judge the plaintiff filed a separate suit for declaration that the decree in the former suit had been obtained by the plaintiff of that suit by fraud and so was a nullity. That suit, in which the stockist firm and its proprietor were also impleaded, was also filed in the Delhi High Court but subsequently the same was transferred to the District Courts because of the increase in pecuniary jurisdiction of District Courts.