bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 8158 TO 8178 OF 2008 PETITION NO. 8158 TO 8178 OF 2008 PETITION NO. 8158 TO 8178 OF 2008 Shri Sanjay Ramchandra Taralekar & ors. ... Petitioners (in all petitions) v/s Palus Sahakari Bank Ltd., Palus & ors. ... Respondents (in all petitions) Mr.A.M.Kulkarni for the petitioners in all petitions. Mr.V.B.Rajure for the respondent No.1 in all petitions. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 20TH APRIL, 2009 20TH APRIL, 2009 20TH APRIL, 2009 P.C. P.C. P.C.: 1. These petitions are being disposed of by a common order as the issue raised in these petitions is identical and the facts are the same in all the petitions. 2. The petitioners have filed the present petitions contending that the order passed by the appellate authority as well as by the Co-operative Court refusing to direct the plaintiff i.e. respondent No.1 herein to delete the names of the petitioners as party respondents 2 from the dispute is incorrect. 3. According to the petitioners, they are neither necessary parties nor proper parties to the dispute since they have resigned as directors of respondent No.2 Company on 14.1.2001. The loan was availed of by respondent No.2 Company on 30.8.2001. The records of the Registrar of Companies shows that they had retired as directors of the Company on 1.9.2003 and the dispute was filed on 19.12.2003. According to the petitioners, therefore, they are not necessary or proper parties to the dispute. 4. The learned advocate for the petitioners contends that an application had been made to the Trial Court for framing a preliminary issue under Section 9A of the Code of Civil Procedure discharging the petitioners as party defendants under Order 7 Rule 11 of the Code of Civil Procedure. According to the learned advocate, both the Courts below have erred by refusing the application on merits. He submits that plaint does not disclose any cause of action against the petitioners and therefore ought to have been rejected qua them. 5. There is no material on record to show that the petitioners were not directors at the time when the loan 3 was obtained. Both the Courts below, in my opinion, have rightly held that this issue cannot be decided under Order 7 Rule 11 of the Code of Civil Procedure by framing a preliminary issue. The matter would require evidence as to whether the petitioners were involved in any manner or were connected with the respondent No.2 Company when the loan was obtained. The pleadings of the respondent Bank disclose that the petitioners were directors at the relevant time and that it had impleaded them on this basis. In my opinion, there is no perversity in the orders impugned. They do not suffer from any illegality or error apparent on the face of the record and must be upheld. 6. Mr.Kulkarni has relied on the judgment in the case of (1) Jaikisan Jaynarayan Bhaiyya v/s United Western (1) Jaikisan Jaynarayan Bhaiyya v/s United Western (1) Jaikisan Jaynarayan Bhaiyya v/s United Western Bank Bank Bank Ltd., Akola, reported in 2004 (2) Mh.L.J. 755, Ltd., Akola, reported in 2004 (2) Mh.L.J. 755, Ltd., Akola, reported in 2004 (2) Mh.L.J. 755, of a learned Single Judge of this Court in support of his submissions. In this case, the learned Judge has observed that the only allegation against the petitioner in that case was that he was only a director and was not shareholder in the Company and therefore not a necessary party as no cause of action had been made out against him. This was an admitted position by the Bank. However, this judgement can be clearly distinguished in view of the fact that the Bank here has alleged that the 4 petitioners herein were liable for the non-payment of loan which was availed by the respondent Company, being directors of a private limited Company. 7. Mr.Rajure, on the other hand, placed reliance on a judgment in the case of - (1) British Airways v/s Art British Airways v/s Art British Airways v/s Art Works Works Works Export Ltd. & anr., reported in AIR 1986 Calcutta Export Ltd. & anr., reported in AIR 1986 Calcutta Export Ltd. & anr., reported in AIR 1986 Calcutta 120; 120; 120; (2) M/s.Crescent Petroleum Ltd. v/s v. (2) M/s.Crescent Petroleum Ltd. v/s v. (2) M/s.Crescent Petroleum Ltd. v/s v. "MONCHEGORST" "MONCHEGORST" "MONCHEGORST" & anr., reported in A.I.R. 2000 Bombay & anr., reported in A.I.R. 2000 Bombay & anr., reported in A.I.R. 2000 Bombay 161; 161; 161; and (3) Kamala & ors.,v/s K.T.Eshwarasa & ors., and (3) Kamala & ors.,v/s K.T.Eshwarasa & ors., and (3) Kamala & ors.,v/s K.T.Eshwarasa & ors., reported reported reported in (2008) 12 SCC 661. in (2008) 12 SCC 661. in (2008) 12 SCC 661. 8. The consistent view of the Courts has been that for deciding whether the plaint should be rejected under Order 7 Rule 11, the evidence cannot be looked into. It is only from the pleadings in the plaint that the decision has to be taken as to whether the plaint should be rejected for want of a cause of action. I have already observed in the present case, the Bank has made out a semblance of a cause of action against the petitioners herein in its pleadings. There is no need to exercise the powers of this Court under Article 227 of the Constitution of India. 9. Petitions are rejected.