RAKESH KUMAR Vs. SHREE RAM PALACE

JUDGEMENT

(1.) THE present petition is filed under Article 227 of the Constitution of India against the order dated 5.5.2010 passed by the trial Court wherein the trial court has directed the Petitioner to deposit the entire decretal amount in the court within 10 days.

(2.) THE facts necessary to be highlighted in the present petition as alleged by the Petitioner are that the Respondent had filed a civil suit bearing No. 190/2007 under Order 37 of the Code of Civil Procedure Code, 1908, (hereinafter referred to as the "CPC") for a sum of Rs. 20,00,000/ - against the Petitioner. The suit was filed on 9.8.2007 on the basis of cheque dated 11.9.2006, bearing No. 018066 for a sum of Rs. 21,00,000/ - which was alleged to have been issued by the Petitioner to the Respondent in lieu of a friendly loan that the Respondent had allegedly given to the Petitioner and the Petitioner had allured the Respondent that he will return it to him presumably within two months. When the Respondent has asked the Petitioner to return the money, the Petitioner told him to encash the cheque on 15.10.2006. Accordingly, the Respondent presented the cheque for encashment on 16.10.2006 and it got dishonored on 17.10.2006 with the remarks "insufficient funds". The Respondent filed a suit against the Petitioner and in that suit the service on the Petitioner could not be effected as the name of the Petitioner was wrongly written in the plaint as Rajesh Kumar instead of Rakesh Kumar. The Respondent moved an application under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint which was allowed by the Trial Court on 9.1.2008 and name of the Petitioner was corrected as Rakesh Kumar. Fresh summons were issued to the Petitioner for 20.2.2008. On the next date of hearing the summons sent by registered A.D. post were received back with the postal report "Refused". Therefore, the Trial Court held that the Petitioner was duly served and the Court proceeded against him ex -parte and also held that the summons sent in the ordinary manner were also duly served on the Petitioner on 9.2.2008. The trial Court has observed in its order dated 1.4.2008 that the Petitioner had failed to appear within ten days of the service, therefore the suit was decreed against the Petitioner in the sum of Rs. 20,00,000/ -together with pendente lite interest at the rate of 9% per annum.

(3.) THE Petitioner engaged a counsel who informed the Petitioner that an ex -parte decree had been passed against him. The Petitioner, thereafter, moved an application on 18.4.2009 under Order 37 Rule 4 of the Code of Civil Procedure before the Trial Court for setting aside the ex -parte decree. The Trial Court disposed of the said application vide the impugned order dated 5.5.2010 .