BIKANER WOOLS Vs. BANK OF RAJASTHAN LIMITED

JUDGEMENT

(1.) This revision petition has been preferred under S. 115, CPC, against the order dated 5-8-97 passed by the learned Addl. District Judge No. 2, Bikaner in Civil Summary Suit No. 31/96.

(2.) Briefly stated, for the disposal of this petition, the relevant facts are that the petitioner-firm is carrying on the business of wool at Bikaner while Bijay Chand Surana as well as defendant-non-petitioner No. 2 Kamal Kumar are partners of the firm. Defendant-non-petitioner No. 1-firm is also carrying on business of wool at Kekari (District Ajmer). Plaintiff-non-petitioner No. 1 - Bank instituted a summary suit purporting to be under the provisions of Rr. 1 and 2 of O. 37, CPC before the Court of District Judge, Bikaner against the defendant-petitioner-firm as well as defendant-non-petitioner-firm with the wool worth Rs. 96986.22 from defendant-petitioner- firm and the latter was running a cash credit account with the plaintiff-Bank at Kekari. The goods (wool) were despatched from Kekari to Bikaner through builty No. 36156 dated 24-10-88 and the defendant No. 2 drew a bill of exchange (90 days' 'Hundi') for a sum of Rs. 96986.22 on defendant No. 1 which was duly accepted by defendant No. 1 on 29-7-88 and, consequently, the bill of goods and MTR were delivered to the defendant No. 1 through the branch of the plaintiff-Bank at Bikaner and, on acceptance of the 'Hundi' by defendant No. 1, the sum of Rs. 96986.22 was duly credited in the cash credit account of defendant No. 1 after discounting the 'Hundi' drawn on defendant No. 1. The defendant No. 1 was under obligation to have paid amount of the 'Hundi', discount, interest and commission within the stipulated period of 90 days but the same was not paid till last. Even on demand from Bijay Chand Surana, partner of the defendant No. 1-firm, personally, he refused to oblige and his refusal was duly endorsed by the Notary on 13-4-89. Consequently, the plaintiff filed a suit for recovery of principal amount of Rs. 97,614.22 plus Rs. 32,133.54 as interest totalling Rs. 1,28,747.76 against defendant No. 1 as well as defendant No. 2. Alternatively, it was held that instead of defendant No. 1, defendant No. 2 was liable for payment of amount to the plaintiff-Bank.

(3.) Pursuant to summonses of the suit under sub-rule (2) of R. 2 of O. 37, the defendants entered appearance to contest this suit and the plaintiff thereafter served on the defendants summonses for judgment in compliance of sub-rule (4) of R. 3 of the said Order supported by an affidavit verifying the cause of action and the amount so claimed stating that in his belief there is no defence to the suit. Consequently, the defendants, separately, in view of the provisions of sub-rule (5) of R. 3 of the said Order, asked for grant of leave to defend unconditionally. The defendant No. 2 denied having accepted the 'Hundi' denying total liability and, instead, the defendant No. 2 pleading that the goods as per order of defendant of defendant No. 1 were despatched to Bikaner and the delivery was taken by the defendant No. 1 and, simultaneously, a 'Hundi' was drawn on defendant No. 1 for payment of the suit amount which was discounted through the agency of the plaintiff-Bank and so he had received payment of the price of the goods sold and delivered to the defendant No. 1 and, therefore, there did not arise any liability of payment by the defendant No. 2.