M.M.Dutt, J. - (1.) This Rule is at the instance of the plaintiff, the Indian Overseas Bank Ltd., and it is directed against order No. 116, dated July 27, 1974 of the Subordinate Judge, First Court, Alipore. By the said order, it has been held by the learned Subordinate Judge that the defendants Nos. 7 and 8 have been wrongly added as parties to the suit. The learned Subordinate Judge has directed the plaintiff bank to elect as to which of the defendants Nos. 1 to 8 it would proceed against.
(2.) The suit out of which this Rule arises is one for the recovery of the sum of Rs. 80,967.78 advanced by the plaintiff bank to the defendant No. 1, a company, of which the defendants Nos. 2 to 4 are the Directors. The defendant No. 6 assigned to the plaintiff certain direct bills drawn by the defendant No. 6 on the defendants Nos. 7 and 8, in liquidation of the liabilities of the defendant No. 1 to the plaintiff. The defendant No. 5 is the surety and he executed a letter of guarantee in favour of the plaintiff thereby guaranteeing due repayment to the plaintiff up to a sum of Rupees 60,000/- in the event of the plaintiff not receiving payment from the defendants Nos. 7 and 8. It is the case of the plaintiff that in spite of repeated demands the defendants Nos. 7 and 8 have refused to pay any amount in respect of the said direct bills alleging that no sum was due by them under those bills. Upon the said allegations, the plaintiff impleaded the said defendants Nos. 7 and 8 in the suit.
(3.) The defendant No. 8 raised a preliminary objection as to the maintainability of the suit against it and also the jurisdiction of the Court, It was contended on behalf of the defendants Nos. 7 and 8 that in view of the provision of Order 1, Rule 3 of the Civil P. C., they were wrongly joined in the suit. Further, it was contended that as they did not reside and carry on business within the jurisdiction of the Court, the Court could not try the suit as against them. The learned Judge upheld the contentions of the defendants Nos. 7 and 8 and, as stated above, directed the plaintiff to elect as to against which of the defendants it would proceed in the suit. Hence this Rule.;