Bajaj Electricals Ltd. vs Electromast Industries and Others

V.K. Jhanji, J.—This Civil revision is directed against the order of the trial Court dismissing the application filed by defendant under Order VII, Rule 11, CPC for rejection of the plaint. It was stated in the application that the suit filed by the plaintiff in an abuse of the process of law and in fact damages have been claimed in the suit which, on the face of it are meritless and time barred.

The jurisdiction of the Civil Court at Hissar was also challenged. It was averred that the plaint did not disclose any contract between the plaintiff and the defendants and no amount was due and payable to the plaintiff from the defendants. The objection with regard to under-valuation of the suit was also taken. Plaintiffs also filed an application under Order VIII Rule (sic) CPC as well as reply to the application under Order VII Rule 11, CPC wherein it was stated that the defendants instead of filing written statement, filed various miscellaneous applications in order to delay the decision in the suit. It was also prayed that the defendants be directed to file written-statement. Trial Court dismissed the application of the defendants as it was of the view that all the objections raised by the defendants in the application under Order VII Rule 11, Code of Civil Procedure, can be taken by them in the written statement and these can be decided after framing preliminary issues. This order is being challenged by the defendants in the civil revision.

Mr. H. L. Sibal, Senior Advocate, learned counsel for the petitioner made a pointed reference to paras 5 and 10 of the plaint to contend that the relationship between the plaintiff and the defendant was only of buyer and seller and a specific amount i.e. Rs. 3,73,950/- has been claimed on account of material less purchased than the target and a debit note of this amount is dated 22.5.1984 and the suit has been filed on 5.4.1990 which is clearly time barred. He further contended that the plaintiff never acted as an agent of the defendants and, therefore, suit for rendition of accounts is not maintainable.

On the other hand, learned counsel for the plaintiffs submitted that in the plaint, plaintiffs alleged that there was agreement between the parties under which material was to be purchased by the defendants and the defendants had also agreed to supply spare parts and renovate/repair mixies within or outside the guarantee period as per rates/charges mutually agreed from time to time, He further contended that the parties had opened mutual/open current accounts with them and bad agreed to render true and full account of all the transactions to each other as and when required and they having refused to render true account on 24.2.1989, the suit was within time.

After hearing the learned counsel for the parties and after perusal of the plaint, I find that at this stage it is not possible to reject the plaint outrightly. The perusal of the plaint shows that the plaintiffs have relied upon certain agreements and interpretation of the agreements can be gone into only after the same are exhibited in evidence and that can be done only after the filing of the written statement by the defeddants. Plaintiffs in para 3 of the plaint have specifically averred that for the business/transactions both the parties opened mutal/open/current accounts with them and the parties agreed that they will render true and full account of all the transactions to each other as and when required. In para 15, plaintiffs, have further stated that some amount was paid by defendant No. 5 on behalf of defendants No. 1 to 4 on 18.3.1989, 9.3.1989 and 7.10.1988 and after the receipt of this amount, defendants were asked to settle the rest of the account but they refused to settle and render the accounts.

In view of the averments made in the plaint, it cannot be concluded at this stage that even if all the allegations are proved, plaintiffs would not be entitled to any relief whatsoever. A distinction has to be drawn between a case where the plaint itself does not disclose the cause of action and another in which after considering the entire material on the record the Court comes to the conclusion that there is no cause of action. The present case does not certainly fall in the first category and, therefore, trial Court justifiably rejected the application and directed the defendants to file written statement.

Consequently, this civil revision is dismissed with no order as to costs. Parties through their Counsel are directed to appear before the Court of Senior Sub Judge, Hissar on 16.3.1992.