JAYANT NATH, J.

IA No. 11683/2017

1. This application is filed under Order 14 Rule 5 of CPC by defendant nos. 1 and 2 for amendment of issues framed on 18.09.2017. As per the application, the applicant seeks modification of issue nos. 4, 5, 6 & 7 and seeks 2 additional issues.

2. The plaintiff has filed the present suit seeking recovery of Rs. 10,17,42,312/-. The case of the plaintiff is that defendant no.1 who was working at the post of accountant with the plaintiff had opened an account with defendant no.4 bank without complying with the KYC norms. He had deposited 41 cheques dishonestly into the said account. On the analysis of the bank statements, it transpired that defendant no.1 has been operating this account and has been benefiting himself by utilising and misappropriating the account of the plaintiff.

3. Based on the above allegations, this Court framed the following issues on 18.09.2017 :-

1. Whether the suit is bad for non-joinder of parties as alleged? OPD

2. Whether the plaint do not disclose any cause of action, as alleged? OPD

3. Whether there is no privity of contract between the parties as alleged? OPD

4. Whether the plaint is not filed by a duly authorised person? OPD

5. Whether the defendant No. 1 has not illegally acquired the funds belonging to the plaintiff? OPD 1 & 2

6. Whether the subject properties have not been acquired from such illegal funds by defendants No. 1 and 2? OPD 1 &2

7. Whether the plaintiff is entitle to a decree against the defendant nos. 1 and 2 jointly and severally for an amount of Rs.10, 17,42,312/-?

8. Whether the plaintiff is entitle to an interest, and if so, at what rate and for which period? OPP

9. Whether the plaintiff is entitle to a decree of injunction as prayed? OPP

10. Relief, if any.

4. On 11.10.2017 when the above application came up for hearing, this Court noted that as far as issue nos. 4, 5 and 6 are concerned, they have been correctly framed and hence, no intervention is required. On two additional issues which were sought to be framed as per para 5 of the application, it was noted that the plaintiff has no objection to the same. Regarding issue no. 7, the Court had noted the plea of the plaintiff that issue no.7 needs an amendment. The order also noted the plea of the defendant no. 4 that he opposes the reframing of the same.

5. Defendant no.4 in Court today has filed the reply to the present application. The same is taken on record. The Registry may scan the same and have the same placed on record.

6. I have heard learned counsel for the parties.

7. Learned counsel for the plaintiff and defendant nos. 1 and 2 have urged that as per the plaint filed, the plaintiff has sought to claim the recovery of the amount of Rs. 10,17,14,312/- jointly and severally against all the defendants; i.e. defendant no. 1 - the employee of the plaintiff and his wife defendant no. 2, Defendant no. 4 the Bank, where the account is purportedly opened by defendant no.1. As far as defendant no.3 is concerned, it is stated that the said entity benefitted allegedly from the money that was siphoned by defendants No.1 and 2.

Learned counsel for the plaintiff further submits that the issue No.7 framed on 18.09.2017 was wrongly framed and the issue has to be framed as i.e. as to whether the defendants are jointly and severally liable for the said amount.

8. Defendant no. 4 has vehemently opposed the present application. He states that there is no averment in the plaint which would justify the conclusion that the plaintiff is seeking any recovery from defendant no. 4 and hence, defendant no.4 cannot be fastened with any liability.

9. Order 14 Rule 1 and Order 14 Rule 5 CPC reads as follows :-

“Framing of issues :- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.