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GAUHATI HIGH COURT
S.N.Phukan, J.
Canara Bank -Appellant
Versus
Joboka Woods Private Limited -Respondent
Civil Revision No. 84 of 1990
Decided On : 10-10-1991
ORDER 1 RULE 10 CPC - ADDITION OF PARTIES - ORDER 1 RULE 10(2) CPC - COURT'S DISCRETION - NECESSARY PARTIES - LIMITATION - SUMMARY SUIT
Fact of the Case:
Plaintiff filed a suit against the bank and its branch manager for recovery of a sum of Rs. 2,64,450/- with interest, alleging that the bank failed to verify the signature on a cheque, resulting in a fraudulent payment. The bank filed a petition under Order 1 Rule 10 CPC to add the Punjab National Bank and Sri P. K. Sen as defendants, claiming their presence was necessary to adjudicate the matter effectively.
Finding of the Court:
The court held that the addition of the Punjab National Bank and Sri P. K. Sen as defendants was not necessary as there was no allegation against them and no relief was claimed against them. The court further held that adding them as defendants at a late stage would cause prejudice to the plaintiff due to the provisions of the Limitation Act.
Issues: 1. Whether the Punjab National Bank and Sri P. K. Sen were necessary parties to the suit. 2. Whether adding them as defendants at a late stage would cause prejudice to the plaintiff.
Ratio Decidendi: 1. The court held that the addition of the Punjab National Bank and Sri P. K. Sen as defendants was not necessary as there was no allegation against them and no relief was claimed against them. 2. The court further held that adding them as defendants at a late stage would cause prejudice to the plaintiff due to the provisions of the Limitation Act.
Final Decision: The court dismissed the petition filed by the bank under Order 1 Rule 10 CPC to add the Punjab National Bank and Sri P. K. Sen as defendants.
2. The opposite party as plaintiff filed a suit against the present petitioner, namely, Canara Bank and the Branch Manager of the said Bank at Tinsukia Branch for recovery of a sum of Rs. 2,64,450/- with interest.
3. According to the plaintiff, a cash credit account with the Tinsukia Branch of the Bank was opened and it was operated by the plaintiff which is a company through one of its Directors who was duly authorised from time to time. On or about 2.2.85 plaintiff detected that a cheque bearing No. CRH 767185 was missing and accordingly on the same day the bank was informed with a request to stop payment of the above cheque when presented. Subsequently, on reconciliation of the statement of account sent by the Bank, it was found that a sum of Rs. 2,15yOOO/- in favour of Shri P. K. Sen drawn on the above cheque was debited against the account of the plaintiff-company. Plaintiff immediately informed the defendant Bank that the cheque was never issued by the company and the signature was forged. On these fact, the present suit was laid mainly on the ground that though it was the duty of the defendant-bank to verify signature in the cheque with the specimen signature to prevent fraud, the defendants, their employees and/or agents did not follow the procedure of such verification which amounted to misconduct, negligence and carelessness for which the payment was made. It was also averred that Sri P. K. Sen in whose favour the cheque was alleged to have been issued by the plaintiff-company was not known to the plaintiff. Police was also informed and it has been stated in the plaint that the name of Sri P. K. Sen was a fictitious one.
4. In written statement, it is not disputed about the letter sent by the plaintiff-company regarding missing of the cheque and requesting to stop payment. According to defendants on 22.8.84 defendant No. 1 received the cheque in question from the Punjab National Bank through clearing house and after due and proper verification of the cheque including the signature, the cheque was passed for payment and the amount debited to the account of the plaintiff. Statement of account, was sent to the plaintiff in due course in the month of November reflecting the above payment. It has been denied that the sig nature was a forged one. It has also been denied that defendants, their employees and/or agents did not follow the procedure and stated that the payment was made in due coarse of business in good faith or without negligence. According to the defendants payee of the cheque Sri P. K. Sen had an account with the Punjab National Bank and said bank certified that the account will be credited to the account of the payee, namely, Sri P. K. Sen. According to the defendants the payment was made to t' e Punjab National Bank and not to any individual.
5. The suit was laid in the year 1986 and on 25.11.89 a petition under Order 1 Rule 10 read with section 151 CPC was filed on behalf of the defendants stating that the cheque in question was presented by the Punjab National Bank, Tinsukia through clearing house and with the said Bank Sri P. K. Sen has an account. It was further stated that in view of the above fact the Punjab National Bank as well as Sri P.K. Sen are necessary party to enable the Court to effectively and completely adjudicate the matter involved in the suit. This petition was rejected by the impugned order on the grounds inter alia, that defendants filed this petition after lapse of 2\ years when the suit was posted for hearing and that no relief was prayed for by the plaintiff against the Punjab National Bank and Sri P. K. Sen. Therefore, the Court held that there was no cause of action for invoking Order 1 Rule ! 0(2) CPC. The Court further observed that Sri P. K. Sen was a fictitious person and that the very fact that the defendants filed this petit
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