Plaintiffs should add necessary pleadings in plaint.

M. Chockalingam, J.

1. Challenge is made to the judgment of the learned Single Judge made in C.S.No.633 of 1989, whereby a decree was granted in favour of the plaintiff and as against the defendants. Aggrieved the second defendant has brought forth this appeal before this Court.

2. Despite service of notice, the respondents/plaintiffs have not appeared before this court. Hence the Court heard the learned counsel for the appellant and also looked into the materials available and made the judgment as follows:

3. The short facts with which the respondents/plaintiffs approached this court, as could be seen in the plaint in C.S.No.633 of 1989, are it was a suit for recovery of money of Rs.10,93,078.48 together with interest and costs. There was an agreement between the plaintiff and the defendant for supply of Heat Exchangers and as per the purchase order, dated 112. 1985, the same was supplied and there was delay in making supply. As per the understanding, 6 Heat Exchangers, 5 Evaporators and 5 Separators were supplied and part payment for the supply of 6 Heat Exchangers was made and the balance in respect of the supply of the 7th Heat Exchanger remained unpaid and in respect of 8th Heat Exchanger, it was kept ready for delivery to the defendant, but was not delivered due to non payment and thus, there was exchange of notice and the demand made thereat was not met and it is under the said cause of action, the suit was laid for recovery of Rs.10 lakhs and odd.

4. Originally, the first defendant filed written statement, inter-alia, stating that there was breach of contract on the part of the plaintiff in not supplying the Heat Exchangers and materials as understood between the parties; that in view of the delay, which was caused by the plaintiff, the commissioning of plant was also delayed and thus, the plaintiff was liable to pay damages. Further, there was also 6 months delay, by which the defendant incurred heavy damages due to loss of sales on account of delayed commissioning. There was no transportation charge of Rs.40,000/- as claimed. There was breach of agreement by the plaintiff and under these circumstances, the stopping of 8th Heat Exchanger was not proper and there was exchange of notice, whereby damage was also claimed and hence the suit was to be dismissed.

5. Pending proceedings, the plaintiff filed A.No.2960 of 1998 for impleading the second respondent herein as second plaintiff and also the appellant herein as the second defendant and in that application, it was stated that the Calcutta High Court in Company Petition No.391/89 has ordered transfer of business of the first plaintiff to the second plaintiff under the terms and conditions set out in the order and therefore, the said transaction was transferred to the second plaintiff under the scheme of arrangement and hence the second plaintiff was to be impleaded. The plaintiff was informed by the third respondent that the third respondent Company has been amalgamated with the appellant and therefore, the second defendant/appellant was to be impleaded as necessary party. Accordingly, the application was ordered. Thus, the second plaintiff and the appellant herein as the second defendant were impleaded.

6. The second defendant, who is the appellant herein, filed a written statement, stating that there was no claim made against the second defendant and hence so far as the second defendant is concerned, the suit was to be dismissed.

7. Issues were framed and the parties went on trial. P.W.1 was examined on the side of the plaintiff and documentary evidence were adduced. On the side of the defendants, no witness was examined. The Court heard the arguments advanced and looked into the materials available and has passed the judgment as against the defendants and decreed the suit in entirety negativing the contentions put forth by the defendants. Aggrieved over the same, the second defendant has brought forth this appeal.

8. Advancing arguments on behalf