D KOCHCHAR Vs. CANARA BANK

JUDGEMENT

(1.) This appeal has been preferred by appellant/defendant No. 3 against the order passed on 29.8.2000 by learned Single Judge allowing applications (IAs. 8915 and 8917 of 1994 in Suit No. 502 of 1985), which were filed by the defendant/appellant. The appellant is aggrieved by the condition imposed on him of deposit of Rs. 5,00,000.00within 8 weeks for setting aside the decree against him.

(2.) A suit was filed- by the plaintiff/ respondent under Order XXXVII Criminal Procedure Code. The appellant was also impleade.d defendant No. 3., Summons in the suit were duly served on the defendants including defendant No. 3, who duly put in appearance on 13.5.1985. Summons for judgment were directed to be issued. These were stated to have been served on 23.8.1985 not on the defendants but upon their counsel. As no application for leave to defend was filed on behalf of defendant No. 3 and the application of defendants 1 and 2 seeking leave to defend was dismissed on 17.8.1993, learned Single Judge proceeded to decree the plaintiff's suit against all the defendants. Defendant No 3 by an application all the defendants. Defendant No. 3 by an application prayed for setting aside the decree, inter alia, on the grounds that the plaint disclosed no allegations about existence of any written agreement between the plaintiff and defendant No. 3, therefore, suit under Order XXXVII Criminal Procedure Code. against him was not .maintainable and that the counsel did not inform him about service of summons for judgment on him (counsel) due to which leave to defend could not be sought in time. Version of the defendant/appellant was accepted by learned Single Judge that at the time of passing of decree, the Court was not informed by the plaintiff that there was no written agreement between the plaintiff and defendant No. 3, therefore, decree passed against defendant No. 3 without any written agreement or guarantee on record was a mistake of the Court and no person can be penalised or punished for such mistake of the Court. Learned Single Judge also came to the conclusion that summons for judgment were not served upon defendant No. 3 because of which he could not take requisite steps for leave to defend. Despite these findings, learned Single Judge while allowing the application of defendant No. 3 imposed a condition of deposit of Rs. 5,00,000.00 for setting aside the decree.

(3.) We have heard learned counsel for the parties.