A PARTY WHO IS IMPROPERLY JOINED AS A DEFENDANT CAN HAVE ITS NAME STRUCK OFF FROM THE ARRAY OF DEFENDANTS AT ANY STAGE OF THE PROCEEDINGS.

( 1 ) BY this order I propose to dispose of Defendant No. 3 s application, I. A. 4060/85 in Suit No. 1693/83 and I. A. 4059/85 in Suit No. 1694/83. However, the facts of Suit No. 1693/83 are being taken into consideration for the purpose of disposing of these applications.

( 2 ) IN a suit for recovery of Rs. 10,30,49007, the case set up by the plaintiff, M/s. Jai Narain N. Sadh. Sadhwara, in brief, is that the Plaintiff firm airfreighted the four consignments of cotton printed cloth articles through Pan American World Airways, Defendant No. 1 of the total value of Rs. 2,91,700. 00 from Delhi for being safely carried to and to be delivered in sound condition at the destination airport, Armsterdam of Holland, to the consignee. Defendant No. 3, Armsterdam-Rotterdam Bank N. V. (hereinafter called "amre Bank") or to the proposed customer after due authorisation for the same by the consignee or consignor, the Plaintiff firm. Defendant No. 2, Ambar Tours Private Limited acted as an authorised agent of Defendant No. 1 and completed all the usual fromalities of issuing airway bills etc; to the plaintiff firm. Later on Defendant No. 1 informed the Plaintiff firm that the aforesaid shipment reached at Armsterdam Airport and the consignee bank, Defendant No. 3 and the proposed buyer. Defendant No. 4. B. S. A International B. V. claim to accept the said shipment one by one during acartain span of time, which was acceptable to Defendant No. 1. The Plaintiff firm. however, on 23rd April, 1982 received a letter from Defendant No. 1 informing that the said consignments were abandoned due to non-delivery of all the consignments on that very day. The Plaintiff firm asked for the better particulars from Defendant No. 1 about the fate of their consignments, but inspite of repeated attempts nothing could be achieved. The Plaintiff firm also sent one of their representatives to the office of Defendant No. 1 who was informed that the consignment had been auctioned by Defendant No. 1 at Armsterdam. This act of the Defendant No. 1 is against principles of International Law relating to the trade of transport as a result of which all the Defendants have become liable to the present claim. Hence, the suit.

( 3 ) DEFENDANTS No. 1 and 2 in their separate written statements raised a number of preliminary objections to the maintainability of the present suit and also contested the claim of the Plaintiff on merits. Defendant No. 3 has not filed the written siatement, but has preferred TO to move the application I. A. 4060/85 under Order 1 Rule 10 (ii) and Order 7 Rule 11 Civil Procedure Code. for striking of the name of Defendant No. 3 from the array of Defendants and the dismissal of the suit against them with compensatory costs. This very application is under consideration.

( 4 ) IT is the case of Defendant No. 3 that as per the averments in the plaint, the goods were despatched for Defendant No 4 and the applicant/ Defendant was approachad by Plaintiff s bankers, the State Bank of India Farrukabad and the Chartered Bank, Kanpur to remit the amounts upon receipt from the foreign buyers. Defendant No. 4 to the said bankers. The bill of exchange etc. , relating to the consignment were sent to the applicant/ Defendant for collection and release of such documents upon receipt of payment from Defendant No. 4. There was no offer or acceptance or any contract between the plaintiff and the Applicant/defendant that upon the default of the foreign buyers, Defendant No. 4 to pay and collect documents, the Applicant/ Defendant shall act as the clearing agent of the Plaintiff, clear the goods from the air-craft on payment of customs duty and other charges at the airport, store the goods, act and incur all relative charges, as no consideration was ever recevied or agreed to be received by the Applicant. Under these circumstances, the plaint discloses no cause of action and even otherwise the Applicant/defendants are not amenable to the jurisdiction of this cou