Bombay High Court
M/S. Sachin Earthmovers vs Capt. Daljit Singh Anand on 4 January, 2021
Bench: C.V. Bhadang
18 wp 927-17=
Sneha N. IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Chavan CIVIL APPELLATE JURISDICTION
Digitally signed
by Sneha N.
WRIT PETITION NO. 927 OF 2017
Chavan
Date: 2021.01.05
13:29:06 +0530
Sachin Earthmovers .. Petitioner
V/s.
Capt. Daljit Singh Anand ..Respondent
----
Mr. Kezer Kharawala i/b Lex Juris for the Petitioner.
Mr. Rishi Soni i/b N.R. Gandhi for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 4th JANUARY, 2021
P.C.
1. Rule. Rule made returnable forthwith. The learned counsel for
the respondent waives service. Heard finally by consent of parties.
2. The challenge in this petition is to the part of the impugned
order dated 25.10.2016 passed by the learned City Civil Court at
Greater Bombay in Notice of Motion No. 4106 of 2016 in Suit No.
6396 of 2006 (H.C. Suit No. 1449 of 2006), by which the learned
Trial Court while setting aside an ex-parte judgment and decree
dated 21.08.2015 has directed the petitioner (original defendant) to
deposit the entire decreetal amount of Rs.21,14,165/-. According to
Sneha Chavan page 1 of 4
18 wp 927-17=
the petitioner, the condition imposed is onerous and could not have
been imposed in the facts and circumstances of the case.
3. I have heard the learned counsel for the petitioner and the
learned counsel for the respondent. Perused record.
4. The learned counsel for the petitioner has placed reliance on
the decision of the Supreme Court in the case of Tea Auction
Limited v/s Grace Hill Tea Industry and another 1, in order to submit
that while allowing the application for setting aside an ex-parte
decree, the Court cannot impose a condition which is onerous.
5. The learned counsel for the respondent has pointed out
paragraphs 7 and 8 of the impugned order. It is submitted that the
Trial Court had infact found on the basis of an affidavit of service
filed by the bailiff from the office of the Sheriff of Bombay that writ
of summons was indeed served on the petitioner. He, therefore,
submits that inspite of this, the Trial Court has granted indulgence
in favour of the petitioner on condition of deposit of decreetal
amount, which is just and proper.
1 (2006)12 SCC 104
Sneha Chavan page 2 of 4
18 wp 927-17=
6. I have considered the rival circumstances and submissions
made. The Supreme Court in the Case of Tea Auction Ltd.(supra)
has held that under Order IX Rule 13 of the Code of Civil Procedure,
1908, the Court can impose costs as well as direct the payment of
part or full decreetal amount in Court. However, this would depend
upon the facts and circumstances of each case.
7. Coming to the present case, the respondent has filed the suit
in the year 2006 for recovery of an amount of Rs.21,14,165/-
alongwith interest, which suit came to be decreed ex-parte on
21.08.2015. The Trial Court was exercised its discretion and has
granted application for setting aside decree filed by the petitioner.
The only question is whether the imposition of the condition about
the deposit of entire decreetal amount is just and proper. It appears
that the learned Trial Court has not chosen to impose any costs as
such.
8. In my considered view, taking an over all view of the matter, it
is appropriate, if the petitioner is directed to deposit costs of
Rs.50,000/- (Rs. Fifty thousand only) and to deposit Rs.10,00,000/-
(Rs. Ten Lakhs only) towards the decreetal amount or furnish any
security to the extent of Rs.10,00,000/- to the satisfaction of the
Sneha Chavan page 3 of 4
18 wp 927-17=
learned Trial Court. This in my considered view would meet the
ends of justice. It is in the interest of both the parties that the suit
which relates to the year 2006 is decided at the earliest.
9. In that view of the matter, the following order is passed:
ORDER
i) The petition is partly allowed.
ii) The impugned condition No. 1(i) of the order dated
25.10.2016, is hereby modified.
iii) The order relating to the setting aside of the ex-parte decree
shall be subject to the condition of petitioner depositing costs of
Rs.50,000/- (Rs. Fifty thousand only) payable to the respondent
within four weeks from today.
iv) This shall be further subject to the condition that the
petitioner deposits an amount of Rs.10,00,000/- (Rs. Ten Lakhs
only) or furnishes any security to the extent of Rs.10,00,000/-, to
the satisfaction of the learned Trial Court, within four weeks from
today.
v) The petition is deposed of in the aforesaid terms.
C.V. BHADANG, J.
Sneha Chavan page 4 of 4
