LexSMT. KAMLESH KOHLI AND ANR. versus ESCOTRAC FINANCE AND INVESTMENT LTD. AND ORS.
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SMT. KAMLESH KOHLI AND ANR. v. ESCOTRAC FINANCE AND INVESTMENT LTD. AND ORS. OCTOBER 5, 1999 [K.T. THOMAS AND M.B. SHAH, JJ.] Civil Procedure Code, 1908-0rder XXXVIJ Rule 4, Order I Rule 6, Order VIII Rules 5 and· 10, Order IX Rule 11 and Order XV Rule 2--Leave to defend-Grant of-Suit for recovery of debts-Application by defendants A B for grant of leave to defend unconditional/y-Dismissed-011 appeal, court C granting leave to defend to one of the defendants and denying to others-Validity of-Held, courts not obliged to grant leave to defend to all defendants merely because it was granted to one of the defendants. Respondent-companies filed a summary suit for recovery of debts D against defendants. Defendant no. 2, sole proprietor of defendant no. 1 firm and defendant No. 3, son of defendant no. 2 filed an application for grant of leave to defend unconditionally. Single Judge of High Court dismissed the application and decreed the suit. Being aggrieved, defendant nos. 2 and 3 filed separate appeals before the Division Bench of the High Court. Appeal filed by defendant no. 2 contending that her son was only E attorney for prosecuting the writ petition and had no authority to enter into agreement was dismissed by the court holding that the plea was wholly misconceived, malafide and abuse of process of law. However, in the appeal filed by defendant no. 3, the court granted leave to defend unconditionally as it was averred by the respondents that he was arrayed only as a F proforma party and no relief was claimed against him personally. Hence the present appeal by defendant nos. 1 and 2. On behalf of appellants it was contended that the suit was for recovery of composite amount and therefore when leave to defend was G granted to defendant no. 3, it ought to have been granted to them also, otherwise there would be inconsistent decrees. Dismissing the appeal, the Court HELD : 1. Civil Procedure Code nowhere prescribes that decree H 373 374 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R. A against some of the defendants to a suit cannot be passed or that if the suit is dismissed qua one defendant it is required to be dismissed against other defendants too. Order 1 Rule 6 makes the position clear by providing that plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract B including parties to bills of exchange, hundis and promissory notes. There- fore, even presuming that defendant no. 3 was jointly and severally liable to pay the amount specified in the memorandum of agreement, it was optional for the plaintiff to join him as party defendant. In the instant case, however, that is not the situation because plaintiff has specifically averred that defendant no. 3 is joined as formal party. Further Order VIII C Rules 5 and 10, Order IX Rule 11 and Order XV Rule 2 makes the position clear by providing that decree can be passed against the defendant who has not filed the written statement or who remains absent or who is not at issue with the plaintiff on any question of law or of fact. (377-B; E] D 2. The High Court rightly arrived at the conclusion that defence is, on the face of it, dishonest and rnala fide. The reason is not too far to find out because in a writ petition filed by the plaintiffs, a memorandum of agreement was arrived at, which was duly. signed by the plaintiffs and defendant no. 2 as well as defendant no. 3 as attorney of defendant no. 2. E The Division Bench of the High Court, after recording the presence of constituted attorneys of the parties and considering the memorandum of agreement accompanied by application containing the necessary docu- ments, permitted the plaintiffs to withdraw the writ petition. The plaintiffs acted upon the said agreement and withdrew the petition. The defendant F also acted upon the said agreement and paid the first instalment to the plaintiffs. In view of these facts it is unreasonable to permit the defendant to raise an illusory contention that the said settlement is not binding on her. Therefore, the court rightly rejected the application of defendant nos. 1 and 2 for grant of leave to defend. (378-F-H; 379-A; BJ G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5725 of 1999. From the Judgment and Order dated 24.3.98 of the Delhi High Court H in F.A.0. No. 197 of 1997. ' -- •· SMT. KAMLESH KOHLI v. ESCOTRAC FINANCE & IN
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