B K METAL INDUSTRIES Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) THE present application under Section 115 of the Code of Civil Procedure has been directed against Order No. 21 dated 01. 02. 1994 passed by the learned subordinate Judge (Now, Civil Judge, Senior Division), 2nd Court at Howrah in T. S. No. 151 of 1991.

(2.) BRIEFLY, the petitioners' case is that the opposite party filed Title suit being No. 151 of 1991 for a decree of recovery of an amount of Rs. 70,905. 44 paisa against both the defendant Nos. 1 and 2 in the suit, jointly and severally, and also for interest from 1st October, 1991 till realisation and for a declaration that the goods and machinery described in the schedule of the plaint of the suit is under hypothecation to the plaintiff Bank, it having first and paramount charge over the same for its claim and for other reliefs. Defendant no. 1 in the suit was the sole proprietorship firm while defendant No. 2 therein was its sole proprietor. The defendant obtained a cash credit limit facility of rs. 40,000/ -. As the defendants stopped submitting stock statement regularly, sale proceeds were not deposited causing irregularity in the said action and the dealing with the said account by the defendants which was detrimental to the interest of the plaintiff and a sum of Rs. 70,905. 44 paisa became due from the defendant.

(3.) ON entering appearance in the suit, the defendants therein and petitioner here, could not file written statement due to non-supply of certain documents relevant for the purpose of adjudication there and so, the present petitioner filed an application under Order 11 Rule 12 of the Code of Civil procedure, in the suit praying for a direction upon the plaintiff to discover on oath, the documents to be relied upon at the time of peremptory hearing of the suit and subsequently, this application was allowed on contest by directing the plaintiff to discover those documents in its possession, on oath. Since the plaintiff did not comply with the said Court's order even after that direction, the petitioner/defendants filed another application under Order 11 Rule 21 of the code for dismissal of the suit and subsequently, upon hearing, the learned trial Court dismissed the suit on 12. 01. 1993 thereupon. Plaintiffs (opposite parties here) filed an application under Section 151 of the Code of Civil procedure on 23. 02. 1993 for recalling the said order being No. 11 dated 12. 01. 1993. The petitioner filed objection against the said application and on 1. 1. 1994 and after hearing the parties, the learned trial Court allowed the said application under Section 151 without assigning any reason though the application was filed beyond the period of limitation and no application for condonation of delay was filed and the suit was restored. Petitioners claimed that the inherent power cannot be exercised when the plaintiffs/opposite parties had remedy under Order 43 Rule 1 of the Code, it cannot be said to be illusory.