1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1052 OF 2009 IN SUIT NO. 1759 OF 2000 M/s.Tata Chemicals Limited & Anr. ...Plaintiffs vs. M/s.N.S. Guzder & Co. Ltd. & Anr. ...Defendants Mr.Shailesh Mendon with Ms.Preeti Singh i/b. M/s.A. Mehta Laljee & Co. for Applicant in support of Notice of Motion (Orig.Defendant No.2). Mr.S.P Kanuga i/b. Ms.P.N. Sadarangi for Defendants/Orig.Plaintiffs. CORAM : V.M. KANADE, J. DATED : JULY 20, 2009 P.C. :- 1 Heard Counsel for the applicant-original defendant no.2 and Counsel for the defendants- original plaintiffs. 2 2 This notice of notion is taken out by defendant no.2 for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure against defendant no.2 and for dismissal of the suit against him for want of cause of action. 3 The learned Counsel appearing for defendant no.2 submitted that in the grounds mentioned in para 1 of the plaint, it is specifically contended that defendant no.2 is the agent of the defendant no.1. He submitted that from the averments in the plaint, no cause of action arises against defendant no.2. He invited my attention to Section 230 of the Contract Act and submitted that the agent, therefore, could not be held to be liable in such cases. He relied on the judgment of the learned Single Judge of this Court (Coram : R.M. Lodha, J., as he then was) in the case of Midland Overseas, Petitioner vs. m.v. CMBT Tana and others, Respondents, reported in AIR 1990 Bombay 401 and also judgment of the learned 3 Single Judge of this Court dated 14.1.2009 in Notice of Motion No.1331/2008 in Suit No.674/2003. He submitted that in both the said cases, the facts were identical to the present case and defendant no. 2 as an agent had taken out the said notice of motion, was deleted from the array of parties by the order of the court. 4 On the other hand, the learned Counsel appearing for the plaintiffs submitted that the correspondence indicated that defendant no.2 had acted beyond the scope and authority given to it by defendant no.1. He submitted that though it was mentioned in para 1 that defendant no.1 is a carrier and defendant no.2 is agent, he has independently sued defendant no.2 on account of non-feasance and misfeasance. He submitted that the correspondence between the parties clearly indicated that defendant no.1 had not authorised defendant no.2 to act in the manner he had acted and as such, therefore, he had acted beyond the scope and authority which was given 4 to it by defendant no.1. He submitted that therefore, in the averments made in para 13, defendant no.2 was independently sued and not merely as agent of defendant no.1. 5 It is no doubt true that in para 1 of the plaint, a specific averment is made that defendant no.2 is agent of defendant no.1. Though that being the case, provision of Section 230 would be clearly applicable. However, further other averments made in the plaint, more particularly, averment made in para 13 clearly indicate that defendant no.2 has been independently sued for his acts of misfeasance and non-feasance since the material facts have been averred in the plaint. It is always open for the plaintiffs to lead evidence and establish this fact and therefore, it cannot be said that there is no specific averment in the plaint to that effect. In this view of the matter, the ratio of the judgments in the case of Midland Overseas (supra) and M/s.TATA Engineering & Locomotive Co.Ltd. (supra) will not 5 apply to the facts of the present case. 6. The Motion, accordingly, is dismissed. (V.M. KANADE, J.)