Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 818 (ORI)

Pravat Kumar Sahoo v. State Bank Of India

2018-11-26

A.K.RATH

body2018
JUDGMENT A.K. Rath, J. - This petition seeks to lacinate the order dated 11.5.2018 passed by the learned Civil Judge (Sr.Division), Banki in C.S.(III) No.31 of 2014, whereby and whereunder, learned trial court rejected the application of the defendants to implead the New India Assurance Co. Ltd., Khurda and its Surveyor as defendants under Order 1, Rule 10 C.P.C. 2. Plaintiff-opposite party instituted the suit impleading the petitioner as defendant no.1 for realization of Rs. 5,63,662/- along with P.I and F.I.. The case of the plaintiff is that defendant no.1 availed a cash credit facility from the bank and executed the necessary documents in favour of the bank. Defendant no.2 stood as a guarantor in the said loan. Subsequently they became chronic defaulters. 3. The defendants entered contest and filed written statement. While the matter stood thus, the defendants filed an application under Order 1, Rule 10 C.P.C. to implead the New India Assurance Co. Ltd. and its Surveyor as defendants on the ground that defendant no.1's unit was insured with the New India Assurance Co. Ltd., Khurda. In 2008 high flood, the unit sustained loss. The insurer appointed a surveyor. The surveyor assessed the loss and paid money to the bank. In view of the same, the insurer as well as its surveyor should be impleaded as parties. 4. Mr.Jyoti Patnaik, learned Advocate for the petitioner submits that the insurer and its surveyor are proper parties to the suit. The unit has sustained loss. The surveyor was appointed. He assessed the loss, where after the insurer paid the amount to the bank. The submission of Mr. Pattnaik, learned Advocate for the petitioner, is difficult to fathom. 5. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 6. 6. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 7. After having survey of the decisions of the apex Court, a Division Bench of this Court in the case of Dr.(Smt.) Geetanjali Panda v. Dr. Pranaya Ballari Mohanty and others, 2015 (I) ILRCUT- 41, held : "12. The next question is whether the appellant is a proper party to the said proceeding. As regards proper parties, the question depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceedings may apply for impleading of such a party or such a party may suo motu approach the court for being impleaded therein. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate v. Rama Krishna Narain and others, AIR 1953 SC 521 , the apex Court held that the eventual interest of a party in the fruits of a litigation cannot be held to be the true test of impleading a person as a party. (Emphasis ours) The principles enunciated in the aforesaid decisions apply with full force to the facts and circumstances of the present case. 13. The eventual interest of the appellant in the fruits of a litigation cannot be held to be the true test of impleading her as a party." 8. In a suit for recovery of money by the bank, the loanee and the guarantor are the necessary parties. Neither the insurer nor the surveyor is a necessary party or a proper party to the suit. 9. A priori, the petition fails and is dismissed. No costs.