BASUDEO KHAITAN Vs. MADAN LAL PERIWAL

JUDGEMENT

(1.) The instant interlocutory motion has been taken out by the petitioner under Rule 11(d) of Order 7 of the Code of Civil Procedure ("Code" in short) for dismissal of the suit on the grounds of multifariousness, misjoinder of plaintiffs and misjoinder of causes of action. The suit out of which present proceeding arises was instituted by the plaintiffs, being six individuals and an incorporated company claiming decree for a sum of Rs. 56,12,250/-. The first defendant is an individual, whereas the second defendant, being the petitioner herein is a partnership firm, of which the second, third, fourth, fifth and the sixth defendants have been described as partners. Fifteen other individuals have also been impleaded in the suit as proforma defendants. The plaintiff Nos. 1 to 6 and the proforma defendants appear to be members of different branches of the same family, and had equity holding in two limited companies.

(2.) The case of the plaintiffs is that there was a dispute among the family members and the first defendant was entrusted with the duty to mediate and settle the dispute. The decision of the disputing groups was expressed in a memorandum of understanding signed by almost all the plaintiffs and proforma defendants and this instrument is dated 16th May, 2004, a copy of which has been made Annexure "B" to the plaint. The plaintiff Nos. 1 to 6 had deposited the aforesaid sum of money with the second defendant at the instance of the first defendant, on the latter's representation that the partnership firm was under his management and control. In pursuance of such mediation process, the plaintiffs and the proforma defendants had sold their respective holdings in two companies, being Selimbong Tea Co. Ltd. and Seeyok Tea Co. Ltd. and deposited the sale proceeds with the second defendant. This deposit as has been pleaded in the plaint was made with the understanding that on conclusion of the mediation, and in the event the mediation process failed, the money so deposited would be refunded with a specified rate of interest. In the memorandum of understanding, the plaintiff Nos. 1, 2, 3, 4 and 6 as also majority of the proforma defendants were signatories.

(3.) Mr. Das, learned Senior Counsel appearing for the petitioner submitted that the plaintiffs had deposited diverse amounts with the defendant No.2 and the claim of each plaintiff is also in respect of the sum of money they had deposited individually. The memorandum of understanding dated 16th May, 1994 does not refer to any deposits having been made by the parties with the second defendant. Moreover, the fifth and the seventh plaintiffs (Vimal Securities Limited) were not parties or signatories to the memorandum of understanding and the seventh plaintiff could not be said to be a part of the Khaitan family either. Mr. Das argued that each individual plaintiff was seeking to enforce his individual claim against the second defendant in respect of independent transactions and such claim could not be made in a single suit. The right to relief of the plaintiff were not in respect of, nor the same did arise out of the same set or set of acts and transactions. The case of the petitioner is also of misjoinder of causes of action, as the plaintiffs and the defendants are separate in this case, and the claim of the plaintiffs are based on separate transactions.