Hon'ble Judges/Coram:
S.C. Sen and M. Jagannadha Rao

JUDGMENT

M. Jagannadha Rao, J.

1. Leave granted.

2. The appellant has preferred this appeal against the judgment of the High Court of Karnataka dated 14.8.1997 in Writ Appeal No. 2876 of 1997. The Writ Appeal was filed against the judgment of the learned Single Judge dated 9.4.1997 dismissing the Writ Petition filed by the appellant against the orders of the Debt Recovery Tribunal and Appellate Tribunal rejecting the application of the appellant filed under Order 7 Rule 11 of the CPC.

3. The appellant was the 5th defendant in the suit filed by the 3rd respondent, namely, the Corporation - Bank which has its zonal office at Bangalore. The suit was filed in the year 1985 by the said Bank against defendants 1 to 4 belonging to Tadikonda family residing at Guntur in Andhra Pradesh and against the appellant I.T.C. Limited. The relief claimed in the suit was for a sum of Rs. 52,59,639.66. The defendants 1 to 4 above mentioned are respondents 4 to 7 in this appeal. The first respondent is the Debt Recovery Appellate Tribunal and 2nd respondent is the Debt Recovery Tribunal. After the suit was filed in the Civil Court it was transferred to the Debt Recovery Tribunal on 9.10.1995. Before the said Tribunal the appellant filed an application under Order 7 Rule 11 of the Civil Procedure Code for rejecting the plaint so far as the appellant was concerned on the ground that no valid cause of action had been shown against the appellant. The said application was rejected by the Tribunal on 12.12.1996 holding as follows :

"Objections filed. Heard. Cause of action is a mixed question of fact and law. Hence LA. 3 cannot be entertained at this stage. Post for evidence."

4. Against the said order, the appellant filed an appeal before the Appellate Tribunal which was dismissed by the said Tribunal on 3.3.1997 holding that in view of the averments in the plaint and particularly para 12, the question about the liability of the appellant was to be determined at the trial on merits. It stated that the appellant had admittedly received Rs. 32 lacs under the Bills of Exchange or Letters of Credit and the question whether the appellant was justified in receiving the said amount or not and whether plaintiff-Bank was entitled to recover the said amount from the appellant - were to be determined only at the trial. Accordingly the appeal was dismissed in limine.

5. The appellant filed Writ Petition 8564/1997 in the Karnataka High Court which was again dismissed by an order dated 9.4.1997 holding that the question has to be decided at the trial and that it could n........