IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 452 of 1998. Judgement reserved on: 17.4.2009 Date of decision: 23.4.2009. M/s J.B. Conductors & Cables and ors. ….. Appellants. Vs. The Himachal Pradesh State Electricity Board & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D.Sood, Advocate. For the Respondents : Mr. Baldev Singh, Advocate, for respondents No. 1 to 3. Ms. Madhu Sharma, Advocate vice Mr. Ashwani Kumar Sharma, Advocate, for respondent No. 4. Kuldip Singh, Judge. This appeal has been directed against judgement, decree dated 25.7.1998 passed by learned District Judge, Solan camp at Nalagarh, in Civil Appeal No. 23-NL/13 of 1997 affirming the judgement, decree dated 30.4.1997 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No. 211/1 of 1992, whereby the suit was dismissed. The appellants No. 1 to 3 were plaintiffs No. 3, 4 and 5, respondents No. 1 to 4 were defendants No. 1 to 4 and proforma respondents No. 5 and 6 were plaintiffs No. 1 and 2, respectively in the courts below. One Jatinder Kumar Chopra alias Whether the reporters of the local papers may be allowed to see the Judgment? …2… Jatinder Kumar was defendant No. 5 in the suit, who was not impleaded in the lower appellate court as well as in this court in second appeal. 2. The suit was filed by appellants and proforma respondents No. 5 and 6 against respondents No. 1 to 4 and one Jatinder Kumar Chopra for permanent prohibitory injunction restraining respondents No. 1 to 3 from making demand and recovering a sum of Rs.2,86,562.39 or any other amount from proforma respondents No. 5, and appellant No. 1 on account of arrears of bills of power consumption of respondent No. 4, in alternative mandatory injunction directing respondent No. 4 and Jatinder Kumar Chopra to pay an amount of Rs.2,86,562.39 or any other sum found due to respondents No. 1 to 3. 3. It was alleged that proforma respondent No. 5 was a private limited company and proforma respondent No.6 was its Executive Director. The appellant No. 1 is a registered partnership firm of appellants No. 2 and 3 being its partners. The proforma respondent No. 5 and appellant No. 1 are consumers of respondent No.1. The proforma respondent No. 6 and appellant No. 2 had not executed in favour of respondents No. 1 to 3 surety bond on behalf of proforma respondent No. 5 and appellant No. 1 for principal consumer Jatinder Kumar, Director of M/s Rajgharia Overseas Pvt. Ltd. for a sum of Rs.2.25 lacs. The surety bond was not executed by proforma respondent No. 5 and appellant No. 1 jointly or individually nor they were authorized by proforma respondent No. 5 and appellant No. 1 to execute such bond on their behalf. In the suit, demand of …3… Rs.2,85,544.94 made by respondents No. 1 to 3 on the basis of letter dated 9.1.1991 from proforma respondent No. 5 and appellant No. 1 on account of energy bill of M/s Rajgaharia Overseas Pvt. Ltd. was challenged. It was alleged that surety bond was got allegedly executed by Jatinder Kumar by playing fraud perpetuated in league with respondents No. 1 to 3. 4. The suit was contested by respondents No. 1 to 3 by filing written statement. They denied that surety bond was executed by proforma respondent No. 5 and appellant No. 2 in their individual capacity. On the contrary, they pleaded that surety bond was executed by them in the capacity of Executive Director and partner of proforma respondent No. 5 and appellant No. 1, respectively. Therefore, proforma respondent No. 5 and appellant No. 1 are bound by the surety bond. The fraud alleged was also denied. The principal consumer M/s Rajgaharia Overseas Pvt. Ltd. failed to pay the dues of respondents No. 1 to 3, therefore, proforma respondents No. 5 and 6 and appellants are bound to pay the same. It was denied that M/s Rajgaharia Overseas Pvt. Ltd. was not a non-existing company, its name was changed to M/s Himachal Concast Private Limited respondent No.4. 5. The respondent No. 4 filed separate written statement and denied its liability to pay dues to M/s M/s Rajgaharia Overseas Pvt. Ltd. Replication to the written statement of respondents No. 1 to 3 was filed and the stand of respondents No. 1 to 3 was denied. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for relief of prohibitory permanent injunction? OPP. …4… 2. Whether the plaintiffs are entitled for the relief of mandatory injunction? OPP. 3. Whether there is no cause of action? OPD 1 to 3. 4. Whether the suit is not maintainable? OPD 1 to 3. 5. Whether this court has no jurisdiction? OPD 1 to 3. 6. Whether the suit is properly valued? OPD. 7. Whether the suit is bad for mis-joinder of necessary parties? OPD-4. 8. Relief. The issues No. 1, 2, 5, 6 and 7 were answered in negative, issues No. 3 and 4 in affirmative and the suit was dismissed. The appeal was also dismissed by the learned lower appellate court on 25.7.1998, hence, second appeal, which was admitted on 23.11.1998 without reference to any substantial question of law. Therefore, on 17.4.2009, before actual hearing of the appeal, the learned counsel for the parties were heard first regarding the substantial question of law involved in the appeal and ultimately the learned counsel for the parties were heard on the following substantial question of law:- Whether the basic document title Ex. D-2, surety bond and letter Ex. D-4 have been mis-construed and it has been wrongly assumed that M/s J.B. Conductor and Cables had stood guarantee on behalf of Himachal Con-Cost Pvt. Ltd.? 6. I have heard. Mr. K.D. Sood, learned counsel for the appellants, Mr. Baldev Singh, learned counsel for respondents No. 1 to 3 and Ms. Madhu Sharma, learned counsel appearing on behalf of respondent No. 4 and have also gone through the record, none appeared on behalf of proforma respondents No. 5 and 6. The learned counsel for the appellants have submitted that surety bond Ex. D-2 at the most was executed by proforma respondent No. 6 and appellant No. 2 in their individual capacity and not as representatives …5… of proforma respondent No. 5 and appellant No.1, therefore, appellant No. 1 is not liable to pay any amount to respondents No. 1 to 3 on the basis of surety bond Ex. D-2. It has also been submitted that two courts below have mis-construed, misinterpreted letter dated 4.3.1991 Ex. D-4. The appellants are not liable to pay a sum of Rs.2,86,562.39 to respondents No. 1 to 3 on account of demand raised by them on the basis of surety bond. The learned counsel for respondents No. 1 to 3 has submitted that two courts below have rightly appreciated the material on record and have concurrently come to the conclusion that appellants are liable to pay the demand raised by respondents No. 1 to 3 on the basis of surety bond Ex. D-2. He has supported the impugned judgement and decree. 7. The short question involved in the present appeal is whether the surety bond Ex. D-2 was executed by proforma respondent No. 6 and appellant No.2 in their individual capacity or as representatives of proforma respondent No. 5 and appellant No. 1, respectively. The perusal of surety bond Ex. D-2 would show that it was executed for principal consumer Jatinder Kumar of M/s Rajgaharia Overseas Pvt. Ltd., Nalagarh. The surety No. 1 in the bond is Anil Kumar Oberoi of M/s Oberoi Enterprises, Private Limited and surety No. 2 is Shailesh Aggarwal of M/s J.B. Conductors & Cables, Nalagarh. At the end of surety bond Ex. D-2, Anil Kumar has been described as Executive Director of M/s Oberoi Enterprises, Private Limited, whereas Shailesh Aggarwal has signed as partner of M/s J.B. Conductors & Cables. …6… 8. PW 1 Shailesh Aggarwal has admitted his signatures on Ex. D-2. He has admitted his signatures on Ex. D-1 which is the reverse side of application and agreement Ex. D-3 dated 28.2.1990. He has also admitted the signatures of Anil Oberoi on Ex. D-1. He has stated that Anil Oberoi had signed the surety bond Ex. D-2. He has stated that Ex. D-4 was signed by him. On Ex. D-1, which is reverse site of application and agreement Ex. D-3, the name and address of surety No. 1 has been shown as M/s J.B. Conductors & Cables and surety No. 2 has been shown Anil Kumar Oberoi of M/s Oberoi Enterprises Private Limited. It is thus clear that on Ex. D-1 which is reverse side of application and agreement for supply of electricity, Shailesh Kumar and Anil Kumar Oberoi have signed as representatives of M/s J.B. Conductors & Cables and M/s Oberoi Enterprises Private Limited, respectively. Ex.DF is the letter dated 27.1.1991 signed by Anil Oberoi as Executive Director of M/s Oberoi Enterprises Private Limited. In Ex.DF, though reference of bill amounting to Rs.2,85,544.94 has been given but nothing has been stated in Ex. DF that Anil Oberoi or M/s Oberoi Enterprises Private Limited were not liable to pay the bill amount for any reason. It has not been stated in Ex.DF that Anil Oberoi either in his individual capacity or on behalf of M/s Oberoi Pvt. Ltd. was not liable to pay the amount as surety bond Ex. D-2 was not executed by him. 9. DW 2 A.S. Ranu, Advocate, Nalagarh has stated that he drafted surety bond Ex. D-2 on the instructions of Jatinder Kumar, Anil Kumar Oberoi and Shailesh Kumar Aggarwal and they signed in his presence. Anil Kumar Oberoi was Executive Director of M/s …7… Oberoi Enterprises, Shailesh Aggarwal was partner of M/s J.B. Conductors & Cables and Jatinder Kumar was Director of M/s Rajgaharia Overseas Pvt. Ltd. It is thus clear that Anil Kumar Oberoi and Shailesh Aggarwal had signed surety bond Ex. D-2 as Executive Director of M/s Oberoi Enterprises and partner of M/s J.B. Conductors & Cables, respectively. The two courts below have concurrently held that Anil Oberoi and Shailesh Aggarwal had executed the surety bond as Executive Director of M/s Oberoi Enterprises and as partner of M/s J.B. Conductors & Cables. Therefore, appellant No. 1 and proforma respondent No. 5 are liable to pay demand amount of Rs.2,86,562,39 raised by respondent No.1 on the basis of surety bond Ex. D-2 on account of energy consumption of M/s Rajgharia Overseas Pvt. Ltd. The appellants have failed to make out a case that two courts below have misconstrued and misinterpreted the surety bond Ex. D-2 and letter Ex. D-4. The substantial question of law is decided against the appellants. 10. The suit was filed against five defendants including Jatinder Kumar Chopra who was impleaded as party by amending the plaint. The suit was dismissed by the trial court. In the memo of parties of the judgement of the trial court, only four defendants were shown, but fact remains that defendant No. 5 Jatinder Kumar Chopra was also one of the parties in the suit. He was not impleaded as party in the lower appellate court nor in the second appeal in this court. The judgement passed against Jatinder Kumar Chopra had attained finality. He was necessary party in the appeal. Therefore, …8… first appeal in the lower appellate court was not maintainable nor second appeal in this court in absence of Jatinder Chopra is otherwise maintainable. 11. No other point was urged. 12. As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. April 23, 2009. ( Kuldip Singh ) (Hem) Judge.