- (1.) This is an application on behalf of Nanalal M. Varma and Co. Ltd. the defendant No. 2 in this suit, made under O.7, R.11 of the Code of Civil Procedure, praying that the suit be permanently stayed as against them or alternatively the name of the defendant No. 2 Nanalal M. Varma and Co. Ltd. be deleted from the suit and/or the suit register. The case of the petitioner, in substance is that the plaint does not disclose any cause of action against the petitioner. According to the petitioner, it is not the case of the plaintiff, in the plaint, that the contracts, contain any provision enabling the petitioner to enforce the said contracts or to be personally bound by it. According to the petitioner the plaintiff has stated in the plaint, that the petitioner, was acting as agent of the defendant No. 1 and as such, the principal referred to in the plaint has been sued as defendant No. 1. According to the petitioner the suit as against the petitioner, the defendant No. 2 is barred under the provisions of S.230 of the Contract Act, 1872 in so far as the defendant No. 2 is concerned. In the affidavit in opposition filed on behalf of the plaintiff/respondent, the plain-tiff/respondent states that the petitioner is liable under the contracts and he has relied on the contents of the several contracts, copies whereof have been annexed to the said affidavit. It is unfortunate that the petitioner though it annexed a copy of the plaint, to its petition yet, it did not annex copies of the said contracts, which are in fact annexures 'A 'to 'G' to the plaint, and which form part of the plaint. The said copies of the contracts, show that in the said contracts, the defendant No. 2, has been shown as the purchaser.
(2.) According to the plaintiff it will appear from the said contracts, that the defendant No. 2 entered into the said contracts in its firm name as the purchaser. The said contracts are in the prescribed forms of the East India Jute and Hessian Exchange Ltd. Though the said contracts were entered into through the brokers, the said contracts specifically mention that by the said agreements the plaintiff agreed to sell and deliver to the defendant No. 2 and the defendant No. 2 agreed to purchase from the plaintiff diverse quantities of goods at the rates mentioned in the contracts. So, according to the plaintiff the defendant No. 2 was in any event personally entitled to enforce the same and/or was personally bound by it.
(3.) Mr. P.K. Mallick, learned counsel appearing on behalf of the petitioner submitted that the plaintiff has pleaded in the plaint that his client, the defendant No. 2, was the agent of the defendant No. 1. If that is so then, according to Mr. Mallick, by virtue of S.230 of the Contract Act, the plaint does not disclose any cause of action as against his client the defendant No. 2 petitioner herein and that his client will succeed even if all the allegations made in the plaint are accepted and the suit as against his client is bound to fail, under all circumstances. Section 230 of the Contract Act reads as follows : "230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal : In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases :- (1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal; (3) where the principal, though disclosed, cannot be sued.";