Leave to defend in a summary suit should be granted when the defendants raise triable mixed issues of fact and law, particularly when evidence indicates third-party liability related to the cause of action.

COMMON ORDER

These applications have been taken out by the respective defendants for grant of leave to defend the suit which have been filed under Order XXXI Rule 1 CPC and one another application had been taken out by the defendants to implead the third party.

2. Heard Mr.S.P.Sudharshan, learned counsel appearing for the applicants and Mr.B.Janakiram, learned counsel appearing on behalf of the respondents.

3. Learned counsel appearing for the applicants/ defendants would submit that the suit is not based upon a Bill of exchange, hundi or a promissory note as contemplated under Order XXXVII CPC and the same arises out of disputed questions relating to warehouse charges, customs bond obligations and third party liabilities involving a third party. Hence, the issues involved are contentious and involves triable mixed issues of fact and law.

4. He would further submit that the applicants had stored cargo of a third party and hence, the third party is only liable for payment of custom duty as an importer and without impleading the importer, the suit as against the applicants firstly would not maintainable as they are not liable to pay the said charges for which the suit claim based on the bill of ladings have been filed. Hence, they had also taken out an application to implead the said third party and they pray this Court to grant leave to defend the suit as well as to implead the third party.

5. Countering his arguments, the learned counsel appearing for the respondent/ plaintiff would submit that the suit had been instituted for recovery of money arising out of warehousing and services that had been availed of by the applicants/ defendants and the claim of the respondent is also supported by the accepted tariff and issuance of invoices based upon the same and acknowledgement of invoices and part payments made by the applicants from their own bank accounts. The attempt made by the applicants in seeking leave is only to protract the proceedings. The alleged customs proceedings against the importer cannot be taken benefit of by the applicants to absolve their liability which arises under the independent commercial dealings between the parties. The indemnity agreement between the applicants and the third party cannot be passed upon the respondent/ plaintiff as the warehousing agreement for storage of bonded goods that are independent of the third party and is only between the applicant and the respondents. Hence, he would submit that there are no triable issues between the parties as claimed by the applicants and also that there is no necessity to implead the alleged third party as a party to the suit as it is the domain of the respondent/ plaintiff to implead the necessary party and in the event if he had failed to implead the necessary party, it will be only the plaintiff who would suffer and not the applicants. Hence, he prays this Court to dismiss the application.

6. I have considered the submissions made by the learned counsels appearing on either side and perused the materials available on record before this Court.

7. The plaint had been filed on a cause of action that the applicants have approached the respondent/ plaintiff for using the respondent’s cold storage warehouse within the customs area and had been utilised by the applicants for the said purpose. It is also the claim of the respondent/ plaintiff that it had been issued with a notice for recovery of duty and interest as the importer had not paid the customs duty and it is also alleged that the same had been intimated to the applicants. On the said cause of action, the present suit had been instituted against the respective applicants jointly and severally to pay the respondent a sum of Rs.1,6,14,595/-. Analysing the claim of the applicants vis-a-vis the cause of action that had been raised in the plaint, would indicate that a third party liability as claimed by the applicants is also evident. The proforma invoices which forms a part of the plaint documents also indicate t