Prem Lala Nahata & Anr vs Chandi Prasad Sikaria

1. The appellants are the plaintiffs in C.S. No. 29 of 2003 filed on the original side of the Calcutta High Court. They are mother and daughter. They together sued the respondent, the defendant, for recovery of sums allegedly due to them from him. Appellant No.1 sought recovery of a sum of Rs. 10,93,863/- with interest thereon and appellant No. 2 sought recovery of a sum of Rs.10,90,849/- with interest. Their claims were based on transactions they allegedly had with the respondent herein, through Mahendra Kumar Nahata, the husband of appellant No.1 and father of appellant No.2. In essence, the claim of appellant No. 1 was that a sum of Rs. 5 lakhs had been lent by her to the respondent and the same had not been repaid and the same was liable to be repaid with interest and damages. The case of appellant No. 2 was also that she had lent a sum of Rs. 5 lakhs to the respondent and the same along with interest and damages was due to her. It was their case that the transactions had been entered into through Mahendra Kumar Nahata, and that through Nahata, they have had prior dealings with the respondent. They had averred thus in paragraph 4 of the plaint:

The respondent not having repaid the money and having repudiated their claim by filing suits against them, the suit for recovery of the amounts was being filed.

2. The respondent had earlier filed two suits for recovery of amounts allegedly due from the appellants. Money Suit No. 585 of 2001 was instituted by the respondent against appellant No. 2 herein claiming recovery of certain amounts after setting off the amount of Rs. 5 lakhs taken from appellant No. 2. He had accepted that Rs. 5 lakhs had been paid by the appellant but pleaded that it was not a loan, but it was as part of a business transaction set out in that plaint. The respondent had also filed Money Suit No. 69 of 2002 against appellant No.1 herein for recovery of certain amounts on the same basis and after setting off the sum of Rs.5 lakhs alleged to have been paid by her. The suits were filed in the City Civil Court at Calcutta. The said suits were pending when the appellants together instituted their suit C.S. No. 29 of 2003. Their suit, as noticed, was on the basis that the sums of Rs. 5,00,000/- each paid by them to the respondent were by way of loans.

3. The appellants moved A.L.P. No. 10 of 2003 on the original side of the Calcutta High Court invoking clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure (for short "the Code") seeking withdrawal of Money Suit No. 585 of 2001 and Money Suit No. 69 of 2002 for being tried with C.S. No. 29 of 2003 on the plea that common questions of fact and law arise in the suits and it would be in the interests of justice to try and dispose of the three suits together. Though the respondent resisted the application, the court took the view that it would be appropriate in the interests of justice to transfer the two suits pending in the City Civil Court at Calcutta to the original side of the High Court for being tried and disposed of along with C.S. No. 29 of 2003 filed by the appellants. The said order for withdrawal and joint trial became final.

6. The respondent purported to file an appeal challenging that order under clause 15 of the Letters Patent. The Division Bench held that the suit was bad for misjoinder of causes of action and hence the trial court was not justified in not invoking Order VII Rule 11(d) of the Code and in not rejecting the plaint. The Division Bench, did not reject the plaint, but, gave the appellants an opportunity to elect to proceed with the present suit at the instance of one of them and thus confine the plaint claim to one of them and the transaction relied on by that plaintiff. Aggrieved by this decision of the Division Bench this appeal has been filed by the plaintiffs.

and continued:

21. We therefore allow this appeal and reversing the decision of the Division Bench restore the decision of the learned single judge. We request the learned single judge of the High Court to try and dispose off the three suits expeditiously in accordance with law.