M/S Guru Nanak Rice Mills And ... vs M/S Hardial Singh
2023 Latest Caselaw 14910 P&H

                                                         Neutral Citation No:=2023:PHHC:116340




                                                                2023:PHHC:116340
CR No.2280 of 2023                        1


          IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                            CHANDIGARH
                                       CR No.2280 of 2023
                                       Date of decision:02.09.2023.
M/s Guru Nanak Rice Mills and others

                                                                   ....Petitioners

                           Versus

M/s Hardial Singh

                                                                  ....Respondent

CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present:    Mr. Prabhjot Singh, Advocate
            for the petitioners.

            Mr. K.B.S. Mann, Advocate
            For he respondent.

                   *****

VIKRAM AGGARWAL, J.(ORAL)

1. The present revision petition assails the order dated 30.01.2023, vide

which the application filed by the petitioner under Order 9 Rule 13 CPC was

allowed and the ex parte judgment and decree dated 30.10.2018 (Annexure P-2)

was set aside but a condition was imposed that the ex parte judgment and decree

was being set aside subject to the present petitioner furnishing a bank guarantee

qua the decretal amount within 20 days, failing which the petition under Order 9

Rule 13 CPC would stand dismissed.

2. The facts, as emanating from the petition, are that a suit for recovery

of Rs.13,57,968.97/- was filed by the respondent-plaintiff against the petitioners-

defendants (Annexure P-1). However, the petitioners-defendants did not appear in

the said suit as a result of which they were proceeded against ex parte and ex parte

judgment and decree dated 30.10.2018 (Annexure P-2) was passed. An

application under Order 9 Rule 13 CPC (Annexure P-3) was filed by the

petitioners-defendants for setting aside the said ex pare judgment and decree.

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The same was opposed by way of a reply (Annexur P-4). However, vide order

dated 30.01.2023 (Annexure P-5), the application was allowed. A categoric

finding was returned that the petitioners-defendants had not been served in the

suit. However, the ex parte judgment and decree was set aside but a condition

was imposed that the petitioners-defendants would furnish a bank guarantee with

regard to the decretal amount. It is this condition which led to the filing of the

present revision petition.

3. I have heard learned counsel for the parties and have perused the

paper book.

4. Learned counsel for the petitioners has submitted that once the trial

court had returned a finding that the petitioners-defendants had not been served,

there was no occasion for the trial Court to impose the condition of furnishing of a

bank guarantee.

5. On the other hand, learned counsel representing the respondent-

plaintiff has submitted that the condition was imposed keeping in view the

conduct of the petitioners-defendants as they were having the knowledge of the

pendency of the Civil Suit since the complaint under Section 138 of the

Negotiable Instruments Act, 1881, was also pending between the parties. Learned

counsel submitted that the condition of furnishing of bank guarantee was imposed

to safeguard the rights of the respondent-plaintiff.

6. I have considered the submissions made by learned counsel for the

parties.

7. The trial Court allowed the application filed by the petitioners-

defendants under Order 9 Rule 13 CPC for setting aside the ex parte judgment and

decree. A categoric finding was returned by the trial Court that no summons had

ever been received by the petitioners-defendants and that they had been proceeded

against ex parte on the basis of receipt of registered cover which had been

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received back unserved. Even the summons issued by way of the normal process

had not been received back served or otherwise. The contention of the respondent-

plaintiff that the petitioners-defendants had due knowledge of the pendency of the

Civil Suit was rejected. The trial court went on to allow the application under

order 9 Rule 13 CPC but while setting aside the ex parte judgment and decree

dated 30.10.2018 (Annexure P-2), a condition was imposed that the petitioner-

defendants would furnish a bank guarantee for Rs.13,57,968.97/- within 20 days,

failing which the petition under Order 9 Rule 13 CPC would stand dismissed.

In the considered opinion of this Court, the condition so imposed is

completely unsustainable in view of the categoric findings returned by the trial

Court with regard to the service. In so far as safeguarding of interests of the

respondent-defendant is concerned, it would be open for the respondent-plaintiff

to proceed in accordance with law before the trial Court.

In view of the above, the present revision petition is allowed. While

maintaining the decision of the trial Court vide which the application under Order

9 Rule 13 CPC was allowed and the ex parte judgment and decree was set aside,

the condition imposed by the trial Court with regard to furnishing of the bank

guarantee is set aside.

                                                     (VIKRAM AGGARWAL)
             nd
September 2 , 2023                                         JUDGE
Rekha


                    Whether speaking/reasoned : Yes/No.
                    Whether reportable :        Yes/No.




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