MADAN MOHAN SUREKA Vs. BHAVANI CINEMA

JUDGEMENT

(1.) This is an application by the defendant No. 2, Georgina May Narayan for leave to enter appearance and to defend this suit filed by the plaintiff under Order XXXVII of the Code of Civil Procedure. The suit is for principal amount of Rs. 50,000/- and for interest amounting to Rs. 16,769.98 on Hundies from the respective due dates. The claim of the plaintiff Madan Mohan Sureka for the same amount is based on five Hundies for Rs. 10,000/- each, all dated February 1, 1969. Each of the Hundies is drawn by Martin John Sarkies, partner of Bhavani Cinema, Cooch Bihar. The drawee is M. J. Sarkies and the holder is the plaintiff Madan Mohan Sureka. The drawee, the holder, the amount and the dates of the Hundies are all same.

(2.) In the petition, the petitioner Georgina May Narayan has taken several points. Some are points of facts and some are points of law. She states that service of summons of the suit was made on her in her personal capacity and as such she cannot be sued under Order XXXVII of the Code of Civil Procedure. She also states that no notice of dishonour of the Hundies was given to her at all. Her case is that no sum either of Rs. 50,000/- or any part was received by her or by her business of Bhavani Cinema, Cooch Bihar, nor was the said sum or any part thereof lent by the plaintiff to the said Bhavani Cinema or to her. In the petition she states certain facts. Her husband was late Maharaja Jagdippendera Narayan Bhup Bahadur of Cooch Bihar. There was a cinema situate at Cooch Bihar called 'Bhavani Cinema.' She was doing business as exhibitor of films in Bhavani Cinema. The defendant No. 3 was entrusted with the administration of the said cinema. She says that she signed several papers and documents in blank upon representation of defendant No. 3 that these would be necessary for the smooth running of the said Bhavani Cinema. Her case is that defendant No. 3 failed to render accounts of the administration of Bhavani Cinema entrusted to him by her. Claims began to emanate from third parties or alleged third parties on the basis of commitments made by defendant No. 3 purporting to act as partner of Bhavani Cinema. One of such claims is in a pending suit, No. 245 of 1971, filed by some creditors of the defendant No, 3 through the same attornies as those acting for the plaintiff. She says that this suit has been filed in consequence of conspiracy of the plaintiff and defendant No. 3 to defraud the petitioner. She also says that there was no consideration for the alleged instrument and no credit of the same appears in the books of the Bhavani Cinema or in control of the defendant No. 3 nor was it necessary for the business to borrow the said sum from the plaintiff or anybody else. She says that she had good defence to the suit.

(3.) On March 15, 1972 the plaintiff, Madan Mohan Sureka filed an affidavit-in-opposition denying and disputing the claim of the petitioner to enter appearance and defend the suit. The case of the plaintiff is that he was supplied with the copy of the deed of partnership between the petitioner and the defendant No. 3 and it was on the basis of the said deed of partnership dated 20th May, 1967 that the transactions in suit took place. In any event, the plaintiff stated that the petitioner at all material times re-presentated that she was a partner of defendant No. 1 and the dealings and transactions in the suit took place on the basis of such holding out or representation. A letter dated November 3, 1971 by B. M. Bagaria, Solicitor for the plaintiff is annexed to the affidavit. This letter is addressed to the firm "Bhavani Cinema", Cooch Bihar and to the petitioner and also to M. J. Sarkies, defendant No. 3 herein. In this letter it is stated that it is undersood that the petitioner and the defendant No. 3 M. J. Serkies were at all material times partners of the said firm, M/s. Bhavani Cinema, Cooch Bihar. It also stated that on February 1, 1969 Madan Mohan Sureka lent and advanced a sum of Rs. 50,000/- for the purpose of the business. In acknowledgment of the said loan of Rupees 50,000/- the said Bhavani Cinema, Cooch Bihar drew and executed five diverse hundies in favour of the plaintiff, Madan Mohan Sureka. Each of the said hundies has been accepted by M. J. Sarkies, defendant No. 3. On the respective dates of maturity of the said Hundies each of them was duly presented to the said M. J. Sarkies for payment and the same was dishonoured by non-payment. Notices of dishonour of the said hundies were given to the said Bhavani Cinema, Cooch Bihar immediately thereafter. In this letter the plaintiff's Solicitor stated that unless the amount of loan is paid with interest, suit will be instituted against Bhavani Cinema, the petitioner and M. J. Sarkies. On December 17, 1971 Victor Mosses and Company Solicitors for the petitioner addressed a letter to B. M. Bagaria Solicitor for the plaintiff stating that they were awaiting for detailed instructions from their client, namely, the petitioner. In this letter it is stated that no admission was made with regard to the statement and allegations made in the said letter of the Solicitor for the plaintiff. Thereafter on or about January 31, 1972 this suit was instituted by the plaintiff under the summary procedure prescribed in Order XXXVII of the Code of Civil Procedure.