1 C.R.A.423/09 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.423 OF 2009 Western Metal Industries and Anr. ...Applicants. v. Yezdi Soli Mubarakari and Ors. ...Respondents. Mr.P.M.Pradhan i/by Atul P. Vanarase, advs. For the Applicants. Mr.K.S.Dewal, adv. For the Respondents. CORAM : J.H. BHATIA, J. DATED : AUGUST 25, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Present applicants, who are the original defendant nos.2 and 3 had made an application before the trial Court to reject the plaint in R.C.S.No.4 of 2006 filed by the respondent no.1/plaintiff. That application was rejected. Hence, this revision application. 3 To state in brief, the defendant no.4 is the private limited company of which plaintiff and the defendant no.1 were the directors. Defendant no.4 had taken certain loan from the Bank of Baroda prior to 21.11.1998 when the plaintiff was a director. Plaintiff and the defendant no.1 both were guarantors for the repayment of loan taken by the defendant no.4. Defendant no.1 had agreed that he shall not dispose off 2 C.R.A.423/09 or create any third party interest in the suit property belonging to him till the loan amount is cleared. Plaintiff ceased to be director on 21.11.1998 but the defendant no.1 continued to be director of the defendant no.4. As the defendant no.1 intended to transfer the suit property in favour of the defendant nos.2 and 3, plaintiff filed R.C.S. No.4 of 2006 seeking injunction to restrain the defendant no.1 from transferring the suit property till the bank loan was cleared. He also sought temporary injunction to that effect and it was granted as per the order dated 28.4.2006. 4 Defendant nos.2 and 3 filed application Ex.36 for rejection of the plaint under Order 7 Rule 11 of the C.P.C. on the ground that loan amount was already repaid and, therefore, suit has become infructuous. Plaintiff pointed out that part of the loan amount was repaid by him and, therefore, he had certain rights under the Contract Act against the property of the defendant no.4 was well as the property of the defendant no.1 and, therefore, suit could not be dismissed. After hearing the parties, the learned trial Court rejected the plaint by the impugned order dated 6.7.2009 observing that in view of the circumstances noted above, if the plaintiff is not given an opportunity to proceed with his claim and the plaint is rejected, the plaintiff may be put to a great hardship and may be 3 C.R.A.423/09 required to file fresh suit, which will result in multiplicity of litigation. 5 The learned counsel for the plaintiff, who is the respondent no.1 makes a statement that the plaintiff has already moved an application for amendment of the plaint seeking certain rights in the property of the defendant no.1 on the basis of contract under which they had stood guarantors for repayment of the loan. It is material to note that the defendant no.1 continued to be director of the defendant no.4 till his death in September, 2006 and after his death, his family members are made directors of the defendant no.4 company and thus, they controlled the business and property of the defendant no.4 while the plaintiff had retired in November, 1998 itself. In view of the circumstances, plaintiff may have certain legal rights not only against the defendant no.4 but also against other guarantors, who had entered into an agreement not to alienate or create third party interest in the suit property. Taking into consideration the facts and circumstances, it is not the case where the plaint could be rejected, therefore, I find no illegality or irregularity in the impugned order. 6 Therefore, revision application stands dismissed. (J.H. BHATIA,J.) 4 C.R.A.423/09