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CASE NO.:

Appeal (civil) 446 of 2007

PETITIONER:

PREM LALA NAHATA & ANR

RESPONDENT:

CHANDI PRASAD SIKARIA

DATE OF JUDGMENT: 02/02/2007

BENCH:

S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

(Arising out of SLP(C) No.23272 of 2005)

P.K. BALASUBRAMANYAN, J.

Leave granted.

1. The appellants are the plaintiffs in C.S. No. 29 of

2003 filed on the original side of the Calcutta High Court.

They are mother and daughter. They together sued the

respondent, the defendant, for recovery of sums allegedly

due to them from him. Appellant No.1 sought recovery of

a sum of Rs. 10,93,863/- with interest thereon and

appellant No. 2 sought recovery of a sum of

Rs.10,90,849/- with interest. Their claims were based on

transactions they allegedly had with the respondent

herein, through Mahendra Kumar Nahata, the husband of

appellant No.1 and father of appellant No.2. In essence,

the claim of appellant No. 1 was that a sum of Rs. 5 lakhs

had been lent by her to the respondent and the same had

not been repaid and the same was liable to be repaid with

interest and damages. The case of appellant No. 2 was

also that she had lent a sum of Rs. 5 lakhs to the

respondent and the same along with interest and damages

was due to her. It was their case that the transactions

had been entered into through Mahendra Kumar Nahata,

and that through Nahata, they have had prior dealings

with the respondent. They had averred thus in paragraph

4 of the plaint:

"The said Nahata in his usual course of

business was known to the Defendant for

many years and sometime in April, 2000

while acting on behalf of the Plaintiffs, the

said Nahata at the request of Defendant

had duly arranged for two loans of

Rs.5,00,000/- to be lent and advanced by

each of the Plaintiffs to the Defendant and

this Suit has been brought to recover the

said loans with interest and special

damages arising from the Defendant’s

failure to repay the said loans within the

stipulated date therefor as is stated more-

fully hereinafter."

The respondent not having repaid the money and having

repudiated their claim by filing suits against them, the

suit for recovery of the amounts was being filed.

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2. The respondent had earlier filed two suits for

recovery of amounts allegedly due from the appellants.

Money Suit No. 585 of 2001 was instituted by the

respondent against appellant No. 2 herein claiming

recovery of certain amounts after setting off the amount of

Rs. 5 lakhs taken from appellant No. 2. He had accepted

that Rs. 5 lakhs had been paid by the appellant but

pleaded that it was not a loan, but it was as part of a

business transaction set out in that plaint. The

respondent had also filed Money Suit No. 69 of 2002

against appellant No.1 herein for recovery of certain

amounts on the same basis and after setting off the sum

of Rs.5 lakhs alleged to have been paid by her. The suits

were filed in the City Civil Court at Calcutta. The said

suits were pending when the appellants together

instituted their suit C.S. No. 29 of 2003. Their suit, as

noticed, was on the basis that the sums of Rs. 5,00,000/-

each paid by them to the respondent were by way of loans.

3. The appellants moved A.L.P. No. 10 of 2003 on

the original side of the Calcutta High Court invoking

clause 13 of the Letters Patent read with Section 24 of the

Code of Civil Procedure (for short "the Code") seeking

withdrawal of Money Suit No. 585 of 2001 and Money Suit

No. 69 of 2002 for being tried with C.S. No. 29 of 2003 on

the plea that common questions of fact and law arise in

the suits and it would be in the interests of justice to try

and dispose of the three suits together. Though the

respondent resisted the application, the court took the

view that it would be appropriate in the interests