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1990 DIGILAW 760 (MAD)

Zebbc Polymers And Cartons Represented By Its Partner S. Ganesan v. Balussery Polymers Private Ltd.

1990-09-07

NAINAR SUNDARAM

body1990
ORDER Nainar Sundaram, J. 1. The defendants in O.S. No. 10974 of 1988 on the file of the City Civil Court, Madras, are the petitioners in this revision. The first respondent herein is the plaintiff in the suit and the second respondent herein is the third-party against whom the defendants wanted third party notice to be issued under Order 8-A, Rule 1 of the Code of Civil Procedure, hereinafter referred to as the Code. The plaintiff has laid the suit for recovery of amounts due on bills in respect of supplies made by it to the defendants. The defendants inter alia plead that all the transactions were entered into through the third-party/the second respondent, who was none else than a Technical Director of the plaintiff and amounts to the tune of Rs. 44,350 were paid into his hands and the second respondent executed four promissory notes for various amounts as evidencing payments, leaving the date, name of payee and rate of interest blank. On these pleas the defendants took out the application under Order 8-A, Rule 1 of the Code to implead the second respondent. The second respondent admitted the execution of the promissory notes, but would say that in view of the close association with the defendants, he, the second respondent left such promissory notes in their custody. The plaintiff would contend that the payments into the hands of the second respondent were not true, and even if true, would not bind the plaintiff. The Court below dismissed the application and this revision is directed against the order of the Court below. 2. Obviously, the defendants are claiming to be entitled to contribution from or indemnity against the second respondent. It is true that the court is bound to find out as to whether the defendant is entitled to any contribution or indemnity before this provision is resorted to. But while considering this question, if the materials disclosed, prima, facie make out a case for the defendant to have the impleading so that the claim for contribution or indemnity as against the third party as per the pleas of the defendant could be settled in the very same suit itself, there will be a justification for ordering the application under Order 8-A, Rule 1 of the Code. The policy and object behind the rule is that the defendant, per chance, he fails in his defence against the plaintiff, which will give rise to a cause of action for him to claim contribution or indemnity against a third party, need not be driven to resort to an independent suit against such third party in respect of the claim for contribution or indemnity, and the scores between the defendant and the third-party could be settled in the very same suit. The rule is in the statute book for the benefit and to serve the cause of the defendant. At the juncture of considering the application under this rule, the court need not adjudicate the very controversy itself. All the court need look into is to find out as to whether a prima facie case is made out, so that multiplicity of action can be prevented. If the case of the defendant for contribution or indemnity has to be ruled out on adjudication on merits, that could as well be done after the rule is complied with. This claim for contribution or indemnity need not necessarily arise from contract, and it could have basis in equity also. 3. On the pleas raised, I am not able to say that even a prima facie case has not been made out by the defendant under Order 8-A, Rule 1 of the Code. In the present case, the Court below has made very many observations which are totally alien to a judicial consideration of the question under this rule. The court below observes that the second respondent got the amounts in his personal capacity. That is not his case at all. The court below also says that the plaintiff is not concerned with the personal liability of the second respondent, and it is for the defendant to proceed against the second respondent on the basis of the promissory notes. These observations apart from being adverse to the second respondent himself, exposes a lack of appreciation on the part of the court below, of the scope and object of the rule. I am not able to appreciate and sustain this approach of the Court below. Since a prima facie case for invoking Order 8-A, Rule 1 of the Code, has been made out, I am inclined to interfere in revision. Accordingly, this revision is allowed. No costs.