MITRA MUKHERJEE AND CO Vs. AJIT KUMAR SARKAR

JUDGEMENT

(1.) This is an appeal from an order directing the defendants in the suit to furnish security to the extent of Rs. 6500/- for the satisfaction of the-plaintiff's claim by depositing the said sum with the defendants' attorney to be held by him free from any lien and subject to further orders of this court, in default whereof the plaintiff was to be entitled to a decree for the amount claimed in the suit.

(2.) The suit is for price of goods sold and delivered, the plaintiff being one Ajit Kumar Sarkar who describes himself in the plaint as the Managing Agent of a Colliery known as 'Beldanga Khas Colliery' of which the proprietors were some persons by the name of Tewaries. According to the plaint the supplies were made and the coals were delivered to the defendant No. 1 at rates controlled by the Central Government, inter alia on the terms that the bills would be payable, within 60 days from the date of presentation and the plaintiff would be entitled to charge interest at 12 per cent per annum, if the bills were not so paid. The particulars of the plaintiff's claim are given in paragraph 5 as based on four separate bills for Rs. 3,023-12, Rs. 410-3-9, Rs. 1,757-1-6 and Rs. 803-12-6. There was no privity of contract between the Colliery or the plaintiff on the one hand and the defendant No. 2, a Company registered under the Indian Companies Act which came into existence after the dates of the contracts on the other. The only cause of action alleged against the second defendant is that under an agreement inter se the defendants the defendant No. 2 has taken over all the assets and liabilities of the defendant No. 1 impliedly warranting that it would be the liability of defendant No. 2 to the plaintiff.

(3.) On an application being made under Chapter XIII-A for final judgment for the amount of the claim an affidavit-in-opposition was affirmed by one Amarendra Nath Mukherjee, a partner of the first defendant and a Managing Director of the second defendant. Various defences to the plaintiff's claim have been taken in this affidavit but I need mention only two of them. The first and foremost is that the plaintiff has no right to sue and has no cause of action against either of the defendants. According to the deponent the plaintiff Ajit Kumar Sarkar was held out as the Managing Agent of the Tewaris Beldanga Khas Colliery and S. C. Tewari and others were held out as the Proprietors of the said Colliery and the defendant firm. Mitra Mukherjee and Co. dealt with them on that basis. The deponent goes on to state that orders were placed on the said Colliery for supplies of Steam Coal on inter alia the following terms and conditions :