S.P. Das Ghosh, J. - (1.) This is an appeal by the plaintiff against an order of rejection of plaint by the learned Subordinate Judge, First Court. Hooghly, in a money suit. The suit has been filed by the plaintiff, Food Corporation of India against the respondent No. 1, a firm, of which the respondents Nos.2 and 3 are parties. The respondent No.4 is an employee under the plaintiff. He was the Sub -Inspector -in -Charge of a godown of the respondent No. 1 at Bandel. There was an agreement on 24.1.70 between the respondents Nos.2 and 3 and the Food Corporation of India, whereby the respondents Nos.2 and 3 were appointed Storing Agents of the Plaintiff for storage of F. C. I. Stocks in the godown of the respondents 2 and 3 at Bandel. The respondent No.4, Sub -Inspector, was in charge of the godown of the respondents No. I, 2 and 3 at Bandel on the basis of that agreement. The respondent No. 5 was an assistant, Grade I, in the accounts Sec. of the District Manager, Food Corporation of India, Hooghly at Chinsurah. The allegation in the plaint was that as a result of collusion of the defendants No. 1, 2 and 3 with the defendants No.4 and 5 there was misappropriation and defalcation of huge quantities of rice and wheat sent to the godown of the respondent No.1 at Bandel in pursuance of that Agreement dated 24.1.70. The 'suit was filed for recovery of a sum of Rs.42 lakhs and odd on account of such misappropriation, misfeasance and defalcations.
(2.) After the filing of the suit a petition was filed for the respondents Nos. 1, 2 and 3 for rejection of the plaint under Order 7 Rule 11 CPC on the ground that the particulars of negligence, omission, commission, collusion, conspiracy or fraud or of misappropriation, misfeasance and defalcation were not given out in the plaint and as such, the plaint did not disclose any cause of action. It was also alleged in that petition under Order 7 Rule CPC that the plea taken by the plaintiff in the plaint for not referring their claim to arbitration on the Basis of the agreement dated 24.1.70 was wholly baseless. Both the parties were heard in the matter by the learned Subordinate Judge, who rejected the plaint on several considerations. According to him, the suit was based on some audit reports for the accounting years 1977 -78, 1978 -79 and 1979 -80. No averment was, however, made in the plaint that Annexures I, II and III giving out the details of misappropriation and/or defalcation were prepared on the basis of these audit reports. The learned Subordinate Judge was swayed by the fact that these audit reports had not been furnished. He thought that Annexures I, II and III to the plaint did not reveal as to how double delivery against release orders issued on different dates had been made and when these double deliveries had been made. In the petition of objection against the petition under Order 7 Rule 11 C.P.C. the plaintiff had alleged at one place that they were not aware of the fact that the particulars of negligence and/or collusion, conspiracy and other offences were necessary for every case. This averment in that petition of objection was the subject matter of comment by the learned Subordinate Judge at several places in the impugned" order. For non -filing of the audit reports and for making such averment in the petition of objection by the plaintiff - appellant the learned Subordinate Judge rejected the plaint. Being aggrieved, the present appeal has been filed.
(3.) Mr. Bhabra, the learned counsel for the appellant, has contended that the particulars given out in the plaint were sufficient to make out a case of fraud and that the learned Subordinate Judge was not justified in rejecting the plaint on the ground that the particulars of fraud had not been disclosed in the plaint". Mr. Maitra, the learned counsel for the contesting respondents, has, however, submitted on citing several case -laws that the particulars as mentioned in the plaint are not at all sufficient to amount to an averment of fraud in the plaint.;