( 1 ) THIS appeal arises out of the judgment and decree dated 12th December, 1990 passed by the learned trial Judge in Suit No. 780 of 1983.

( 2 ) THE claim of the respondent-plaintiff, Britannia Industries Ltd. (hereinafter called, Britannia) is based on a bill of exchange purported to be dated 15. 02. 1983, for a sum of Rs. 1,00,000,00/- (Rupees one crore only ). The said bill of exchange has been annexed to the plaint and marked A.

( 3 ) AS per the version in the plaint, the said bill of exchange was drawn by the defendant No. 2, Metropolitan Construction (hereinafter referred to as Metropolitan) and was accepted by the defendant No. 1 the Punjab National Bank (hereinafter called, PNB ). But this is contrary to the endorsement on the bill of exchange itself.

( 4 ) HOWEVER, further case in the plaint is that the said bill of exchange is duly endorsed by Metropolitan in favour of Britannia and is delivered to Britannia who thus becomes the endorsee and the holder of the said bill of exchange.

( 5 ) IN paragraph 5 of plaint the averment is that the said bill of exchange was duly presented by Britannia for payment but was dishonoured by non-payment. Significantly enough the plaint is silent about the party to whom the said bill of exchange was presented for payment.

( 6 ) IN paragraph 7 of the plaint it has been stated that despite repeated demands defendants have failed to pay Britannia the said sum of Rs. 1,00,000,00/- or any part thereof or any interest statutorily payable thereon.

( 7 ) IN paragraph 8 of the plaint it has been made clear that the suit has been filed under Order XXXVII of the CPC. Admittedly leave under Order XXXVII was not granted.

( 8 ) IN paragraph 9 of the plaint the following averment has been made which is of some importance in the decision of this case and the same is set out verbatim as follows :"the plaintiff is also entitled to claim on the said Bill of Exchange against one Lgee Enterprises, carrying on business at Bombay. This Hon'ble Court however has no jurisdiction to entertain a claim against the said Lgee Enterprises. The plaintiff accordingly prays for leave under Order 2 Rule 2 of the Code of Civil Procedure. "

( 9 ) THE bill of Exchange in issue in this suit (hereinafter call the said bill) is also set out. The first page of the bill runs thus :metropolitan CONSTRUCTION principal Office : branch Office: 8, Kings Acres, Plot No. 75 28, Creak Lane, calcutta-700 014 saraswati Road, place : Bombay. Santa Cruz (West)no. 1/83 bombay - 400 064 date 15. 02. 83 rs. 1,00,000,00/-180 Days after date (inclusive of grace) pay to M/s. Metropolitan Construction. . . . . . . . . . or Order at Bombay, the sum of Rupees One Crore only for value received. M/s. Lgee Enterprises, plot No. R-154, Juhu Tara Road, bombay - 400049 for Metropolitan Construction, sd/- Amit Dutt sd/- Raghu Nath Datta accepted to pay on due date. Partner. For Lgee Enterprises partner signature of drawee punjab National Bank stamp - Illegible 16. 2. 83. Zakaria Street Branch, co-accepted calcutta. FOR PUNJAB NATIONAL BANK b. O. Zakaria Street, Calcutta-700 00 sd/- A. B. Das manager" (4188)the second page of the bill runs thus: pay to Britannia Industries Limited or order for "metropolitan CONSTRUCTION sd/- Amit Dutt sd/- Radhu Nath Dutta partner pay to Punjab National Bank or order for BRITANNIA INDUSTRIES LIMITED sd/- Illegible authorised SIGNATORY"

( 10 ) IT is clear that the acceptor of the said bill is one Lgee Enterprise which is not impleaded in the suit. PNB is alleged to be the co-acceptor of the said bill. In the instant suit PNB is the defendant No. 1 and the suit is contested by PNB only. The drawer of the said bill Metropolitan is the defendant No. 2. Defendant Nos. 3 and 4 are the partners of defendant No. 2. Neither defendant Nos. 2, 3 or 4 contested the suit at any stage. The admitted position is that summons were not served on those defendants.

( 11 ) THE plaint case that PNB is the acceptor of