BALWANT SINGH Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) Balwant Singh has filed this petition under Section 115 of the Code of Civil Procedure, against the order of the learned Subordinate Judge, 1st Class, Sonepat, dated 7th February, 1973, refusing to reject the plaint as a whole in a suit filed by the State Bank of India, respondent No. 1 (hereinafter referred to as the Bank) for the recovery of Rs. 1,17,268.59 Paise, against the petitioner and eight other defendants. The relevant facts of the case, may briefly be stated, thus:-- On 7th January, 1966, the Bank granted instalment credit facility to Messrs. Cooks Manufacturing, Sonepat, defendant No. 1 (hereinafter referred to as the firm), to the extent of Rs. 14,950 which was repayable by the firm in 12 instalments spread over a period of three years. Defendant No. 5 stood surety for the repayment of the amount advanced to the firm. On 18th July, 1966, the firm was granted overdraft facility to the extent of Rupees 10,000 by the Bank and in this account a sum of Rs. 7,291.31 Paise was due from the firm on 13th November, 1966, for the repayment of which, defendant No. 4 stood surety on the 11th November, 1967. The amount due on this account swelled to Rs. 9,178.01 Paise, as on the date of the suit. On 11th November, 1967, the firm was also granted a cash credit loan accommodation by the Bank to the extent of Rs. 80,000 repayment of which, along with any interest which might become due, was guaranteed by defendant No. 4. On the date of the suit, a sum of Rs. 99.640.58 Paise had become due in this account. Defendants Nos. 2 and 3 are the partners of the firm. On 17th June, 1966, defendant No. 2, created a mortgage by deposit of title deeds of property detailed in paragraph 13 of the plaint in favour of the Bank, which later on learnt that the said property had been fictitiously mortgaged by defendant No. 2 in favour of defendants Nos. 6 and 7, both of which are Co-operative Societies. On the basis of the allegations referred to above, the plaintiff prayed for a decree for an amount of Rs. 1,17,268.59 Paise with costs and with future interest at the rate of 9 per cent per annum from the date of suit till the date of its realisation.

(2.) The defendants contested the suit. After the written statement was filed, defendant No. 4 made an application on 22nd August, 1972, praying that the plaint be rejected in pursuance of the provisions of Rule 11 of Order VII of the Code of Civil Procedure. The application was resisted by the Bank. After hearing the learned counsel for the parties, the trial Court found that the plaint discloses no cause of action as against defendant No. 4 in respect of the amount of Rs. 8,450 claimed on account of instalment credit facility; that the plaint discloses no cause of action against defendant No. 5 qua the overdraft facility and cash credit loan accommodation and that there being no allegation in the plaint that any notice under Section 79 of the Punjab Co-operative Societies Act had been served on defendants Nos. 6 and 7, the plaint discloses no cause of action against them. On the basis of the aforesaid findings, the trial Court held that the plaint was to be rejected not as a whole but only against defendants Nos. 6 and 7 whose names the trial Court directed to be struck off from the plaint vide impugned order. As earlier observed, it is against that order of the learned Subordinate Judge that the present revision petition has been filed.

(3.) This petition came up for hearing before brother Koshal J. considering the importance of the question of law involved, brother Koshal J. thought it proper to refer the matter for decision to a larger Bench. That is how we are seized of the matter.