- (1.)This Rule was obtained by an application under Section 115, Civil P. C., made on behalf of the two petitioners who are defendants Nos. 2 and 3 in a Commercial Suit No. 287 of 1970 in the 2nd Bench of the City Civil Court at Calcutta and arises out of order No, 12 made by the trial Court in that suit on 11th January, 1971. The plaintiff, who is opposite party No. 1 in this Court, has instituted the suit praying for a decree for Rs. 20,000/- on the basis of the Hundies said to have been executed by the present petitioners on their own behalf and as partners of the firm Provat Cinema which firm was impleaded in the suit as defendant No. 1". There was also a 4th defendant, Nanda Kishore Bagaria, who is opposite party No. 3 in this Court. Defendant No. 1 the firm filed an application praying leave of the Court to defend the suit, the contention sought to be raised by that defendant being that defendants Nos. 2 and 3 were not competent to take any loan on behalf of the firm and as such the firm is not liable to pay the dues on the Hundies even if those are true and genuine.
(2.)The defendants Nos. 2 and 3 also filed a joint application praying for leave, to contest the suit. Their contention was that their father the defendant No. 4 obtained their signatures on certain blank Hundi papers at a time when a dispute had arisen between the sons on the one hand and the father on the other relating to the business. It is contention of the defendants Nos. 2 and 3 that no consideration passed oh account of the said blank Hundies and those were made to be used by the defendant No. 4 for the purpose of bringing a settlement of the dispute and for no other purpose. They alleged that the defendant No. 4 has set up the plaintiff with a false claim against defendants. Nos. 2 and 3.
(3.)The learned Judge in the trial Court in his order dated 11th January, 1971 held that so far as defendant No, 1 is concerned the case raises a triable issue. Regarding the question whether the defendants Nos. 2, and 3 were not competent to take any loan by the Hundies alleged to have been executed by them leave, has been granted to defendant No. 1 to defend the suit without any condition.