Sudhendu Nath Mallick, J. - (1.) In this Letters Patent appeal the plaintiff/appellant has challenged the order dated 21.3 94 passed in Suit No. 10 of 1994 by the learned Trial Judge thereby dismissing his application under Order 12 Rule 6 of the Code of Civil Procedure for judgment-on-admission for a part claim on the ground that the plaintiff ought to have filed the suit making the State Bank of India a party. The learned Trial Judge by the same order has, however, granted leave to the petitioner i. e. the present appellant- to file a fresh application under Order 12 Rule 6 of the Code of Civil Procedure after making the State Bank of India a party to the suit. While passing the impugned order the learned Trial Judge was of opinion that the plaintiff having filed the suit without impleading the State Bank of India as a party the suit would prima facie be bad for non-joinder of necessary party.
(2.) It has been asserted before us by Mr. Mailick, the learned Counsel appearing for the appellant that the impugned order is wholly erroneous as the State Bank of India is not at all a necessary party to the suit brought by the appellant against the defendant/respondent the Calcutta Tramways Company Limited for realisation of dues for the works done for them under a contract of work in which the State Bank of India was neither a party nor was interested in the work done for the respondent. It is, however, admitted by Shri Mailick that the appellant has a cash credit facility account with the State Bank of India, Prince Anwar Shah Road branch in whose favour a general Power-of-Attorney was executed on 16.1.90 authorising the Bank to demand and receive all debts, sums of money etc. which may be due or payable or belong to the appellant and sign and endorse all cheques promissory notes etc. or other orders for payment of money or delivery of property of every description to which the signature or endorsement of the appellant was necessary. It is further submitted by Shri Mailick that the State Bank of India did not take any step to collect the bills preferred by the appellant before the Calcutta Tramways Company and that at all material times the appellant raised the bills directly. It has been submitted by Shri Mailick that the learned Trial Judge without appreciating the legal and factual position that the State Bank of India was not at all interested in the subject matter of the suit or in the contract between the appellant and the respondent company has erroneously dismissed the application under Order 12 Rule 6 on the ground of non-joinder of necessary party and as such caused serious injustice to the appellant.
(3.) It appears that the defendant/respondent took a plea before the learned Trial Judge that during the pendency of the suit they received a letter from the State Bank of India, Prince Anwar Shah Road branch stating that the company should not make any payment to the appellant in respect of the work carried out by him for the defendant company. It further appears that the learned Trial Judge issued notice upon the Branch Manager of the State Bank of India, Prince Anwar Shah Road branch, Calcutta to clarify such a stand and that the Bank: appeared before the Court and stated that the Bank had an irrecoverable Power-of-Attorney in its favour Issued by the appellant to collect all his dues payable by the defendant company. On the basis of such submission and on bearing the parties the learned Trial Judge passed the Impugned order.;