Education Solution Proprietary ... vs Sudhakar Bhagwan Chaudhari
2016 Latest Caselaw 1545 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                         
                         WRIT PETITION NO.4319 OF 2016




                                                 
     1.       Education Solution, Proprietary ship firm          PETITIONERS
              Its Registered office at
              'Tapaswini Compound'
              Chinchwad, District - Pune - 411 019




                                                
              Through its Proprietor

     2.       Shri Kedarsing R. Tapaswi,
              Age - 56 years, Occ - Business,




                                        
              R/o As above

              VERSUS
                             
     Shri Sudhakar Bhagwan Chaudhari                           RESPONDENTS
     Age - 73 years, Occ - retired
                            
     R/o 'Yashodhan' Plot No.6
     Yeshwant Colony, Ring Road,
     Jalgaon, District - Jalgaon
      

                                    .......

Mr. G. V. Wani, Advocate for the petitioners

Mr. A. P. Bhandari, Advocate for respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 15th APRIL, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. The petitioners, who are original defendants, aggrieved by

order dated 3rd March, 2016 whereunder request of present

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petitioners - defendants to grant leave to defend the suit has

been granted, on the condition of furnishing security for the

amount of Rs.48,50,000/- in the form of bank guarantee.

3. Learned advocate for the petitioners submits that this is

onerous condition being put. As a matter of fact about Rs.

18,50,000/- have already been deposited under the orders of

this Court in writ petition No.3124 of 2015. Total transaction

appears to be of Rs.66,00,000/-, whereas contention of present

respondent appears to be that not a single farthing of said

amount had been paid and accordingly the suit, with reference to

certain cheques has been instituted. Simultaneously, proceedings

for dishonour of cheques are being prosecuted.

4. In the suit the defendants requested for condonation of

delay in seeking leave to defend, which had been rejected and

accordingly they had been in writ petition No.3124 of 2015

wherein order had been passed.

5. Learned advocate for the petitioners submits that the

petitioners are not possessed of so much of amount as on the

date and that they have certain immovable properties, which are

worth a crore and more. He, therefore, seeks indulgence of this

court to replace condition of furnishing bank guarantee of

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Rs.48,50,000/- by allowing them to furnish solvent security for

said amount.

6. Learned advocate for the respondent, however, submits

that it is a case of the petitioners that they have in fact paid an

amount of Rs.48,50,000/-, yet they could not support the same

by any prima faice material, at least at this stage and taking into

account this the court had passed an order.

7.

Learned advocate for the respondent, however, has been

fair and reasonable in leaving it to this court to decide the

matter in its discretion, of course with reference to the facts and

circumstances of the case.

8. The petitioners contend that they have already paid an

amount of Rs.18,50,000/-, pursuant to the order of this court

and they are not possessed of so much of amount, in order to

enable them to have bank guarantee of Rs.48,50,000/- as

directed by the court. He further submits that the petitioners

possess sufficient property, which would take care of the claim in

the suit. In this view and considering the fact that the suit is for

recovery of amount, I deem it appropriate that it would be in the

interest of justice that the condition of furnishing bank guarantee

for leave to defend be modified by following order.

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9. Leave to defend the suit is granted to the defendants on

furnishing bank guarantee for an amount of Rs.24,25,000/- and

for rest of the amount of Rs.24,25,000/-, the petitioner shall

furnish solvent security to the satisfaction of the trial court.

10. With aforesaid modification in clause 2 of the operative

part of the impugned order, the writ petition stands disposed of.

Rule is made absolute in aforesaid terms.

11.

Having regard to aforesaid, the time to comply with the

modified conditions stands extended by a further period of eight

weeks from today.

12. The parties agree upon that the suit being summary in

nature, the same may be disposed of as early as possible,

preferably within a period of six weeks from the date of deposit

of amount by the defendants.

[SUNIL P. DESHMUKH, J.]

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