V.K.
Industries & Ors Vs. M.P. Electricity Board, Rampur, Jabalpur [2002] Insc 102 (1 March 2002)
Cji,
Shivaraj V. Patil & Bisheshwar Prasad Singh Shivaraj V. Patil,J.
Leave
granted.
This
appeal is by the defendants in the suit filed for recovery of Rs. 3,84,455.44
with future interest @ 24% per annum from the date of filing of the suit till
realization of the amount. Suit summons were not personally served on the
defendants. However, the trial court, on the basis of newspaper publication,
held that service of summons on defendants was sufficient. In the absence of
the defendants, the suit was decreed ex parte as prayed for by the plaintiff.
On coming to know the ex parte decree, passed against them, the defendants
filed a petition under Order IX Rule 13 of the Code of Civil Procedure. The
trial court dismissed the said petition.
Aggrieved
by the same, the defendants filed Miscellaneous Appeal before the High Court.
The
High Court allowed the Miscellaneous Appeal and set aside the ex-parte decree
subject to the terms
(i) the
defendants shall, within a period of two months, deposit a sum of Rs.2,00,000/-
with the trial court,
(ii) shall
furnish bank guarantee for the remaining sum claimed in the suit within the
said period of two months and
(iii) the
amount so deposited shall be liable to be disbursed in accordance with the
final order that may be passed in the suit. It is to be noted that the
plaintiff has not challenged the order setting aside ex parte decree.
The
only grievance of the appellants is that the terms, upon which ex parte decree
is set aside, are onerous and not reasonable.
On
behalf of the respondents submission was made supporting the said terms as
justified.
Ordinarily,
a money decree is not stayed unconditionally and the judgment-debtor would be
put on terms. Even so, such conditions must be reasonable having regard to all
relevant factors.
Although
ex parte decree was passed against the appellants, once it is set aside on the
ground of non-service of suit summons the money decree did not exist for
execution. It is no doubt true that in restoring a case the court may impose
conditions to deposit costs or the decretal amount or some portion thereof or
to ask the defendant to give security but such conditions should be reasonable
and not harshly excessive. In the impugned order the appellants are put on
terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the
remaining suit claim within a period of two months.
In our
view these terms are onerous, harsh and unreasonable in the facts and
circumstances of the case and that too even before the trial of the suit on
merits.
On
29.10.2001, the learned counsel for the appellants stated that within two
weeks, a sum of Rs. 50,000/- shall be deposited in the trial court and notice
was issued on that day. During the course of hearing the learned counsel
informed that a sum of Rs. 50,000/- is already deposited in the trial court.
We are
of the view that it would be just and appropriate to direct the appellants to
deposit a further sum of Rs.50,000/- in the trial court within a period of four
weeks from today. The terms to deposit Rs.2,00,000/- and to furnish a bank
guarantee for the remaining suit claim shall stand modified as indicated above.
The impugned order shall remain undisturbed in all other respects.
The
appeal is disposed of accordingly.
No
costs.
.......................................CJI.
.........................................J.
(SHIVARAJ
V. PATIL) ..........................................J.
(BISHESHWAR
PRASAD SINGH) March 01,2002.
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