The rejection of a plaint based on misjoinder of parties and causes of action is erroneous, and disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 of the Code.

JUDGMENT

Hiranmay Bhattacharyya, J. - This appeal is at the instance of the plaintiff and is directed against the deemed decree dated April 16, 2021 passed by the learned judge, Commercial Court at Alipore in Money Suit no. 11 of 2020.

2. By the impugned judgment and deemed decree, the application filed by the defendant no. 2/respondent no. 2 herein was allowed thereby rejecting the plaint as against the defendant no. 2 with a direction to delete the name of the defendant no. 2 from the cause title of the plaint.

3. The case made out in the plaint is summarized hereunder as follows-

a) Plaintiff is a civil contractor carrying on business in the name of M/s. N.S. Enterprise.

b) The Defendant no. 1 is a partnership firm represented by Ananya Chowdhury and Anargha Chowdhury.

c) The Defendant no. 2 is a company substantially related to Smt. Ananya Chowdhury and Shri Anargha Chowdhury and Ananya Chowdury is a livewire of both the defendants vis a vis controlling authority and responsible for the day to day affairs of both the defendants.

d) Ananya Chowdhury entrusted the plaintiff with the work of a project of the defendant no. 2 at 6A, Diamond Harbour Road, Kolkata- 700 008 (for short 'the Seal Para project'). Plaintiff completed the work of Seal Para project to the satisfaction of the defendant and a cordial business relationship developed between the parties though three bills in respect of the Seal Para project remained outstanding.

e) On the promises and assurances of payment of the pending bills, the plaintiff was offered to undertake the Arambagh project of the defendant no. 1 and entrusted the plaintiff with the job of piling at the site at Arambagh.

f) Being satisfied with the piling work at Arambagh the defendants entrusted the plaintiff with the work of construction of the G+4 storied building as a whole at Arambagh and issued work order therefore.

g) During continuance of the project at Arambagh, the plaintiff raised bills from time to time and was paid the amount as certified at the instance of the defendants but whenever the plaintiff raised the issue of payment of the bills pending in connection with Seal Para project, the plaintiff was assured by the defendants that the same would be paid along with the payment of the bills of the Arambagh project and the plaintiff did not have any option but to accept such assurance from time to time.

h) The plaintiff completed the construction from plinth area to ground floor roof level but the bill amount was not paid by the defendants.

i) Since the defendants were delaying in payment of bills in spite of requests made by the plaintiff and/ or assurances given on part of the defendant from time to time, plaintiff suffered huge financial damages and thereafter pandemic started which also caused serious suffering to the plaintiff.

j) One Sukdeb Banerjee representing himself as new contractor appointed by the defendants visited the site at Arambagh in or around May, 2020 and communicated to the plaintiff that he has been appointed by the defendant as a contractor to carry on the construction work at the Arambagh site.

k) The parties exchanged their stand by way of letters issued by their respective advocates and a meeting took place at the office of the learned advocates for the plaintiff wherein Anargha Chowdhury and ors. were present along with their learned advocate and the matter was amicably discussed and the parties agreed to have comprehensive settlements of all the issues relating to Seal Para and Arambagh sites.

l) On or about 25.11.2020, plaintiff received an information from Arambagh that the construction at the site has been started by the defendants through someone else without any information given to the plaintiff. The plaintiff claims that he is entitled to a decree for recovery of money on account of the bills raised by the plaintiff for both the sites. The instant suit was filed claiming a sum of Rs. 34,07,617 together with interest at the rate of 18% in respect of Seal Para proj