NIRBHAY TREHAN Vs. VIJAY BHARDWAJ

JUDGEMENT

(1.) The plaintiff has instituted this suit for recovery of Rs.25,25,000/- from the two defendants and for recovery of an additional sum of Rs.5,00,000/- from the defendant No.2 ICICI Bank, together with interest @ 18% per annum, pendente lite and future and costs.

(2.) Summons of the suit were issued to the two defendants. It is the case of the plaintiff in the plaint itself that the defendant No.1 at the time of institution of the suit was in District Prison, Gurgaon being an accused in FIR No.117/2008 under Section 320 IPC and under Sections 25 and 27 of the Arms Act, 1959 of Police Station Civil Lines, Gurgaon. Though the order dated 18.03.2011 records that the plaintiff had filed an affidavit of service of the defendant no.1 in jail but no order proceeding ex parte against the defendant No.1 was made on subsequent dates. In the circumstances, vide order dated 23.08.2011 report was called from the Superintendent of Gurgaon Jail as to whether the summons of the suit had been delivered to the defendant no.1. A report dated 12.09.2011 was received from the Deputy Superintendent of District Prison, Gurgaon confirming that the defendant No.1 was lodged in the said jail and the summons of the present suit for appearance on 25.08.2010 and thereafter for 23.02.2012 had been served on the defendant No.1. In view of the said report, vide order dated 23.02.2012, though no formal order proceeding ex parte against the defendant No.1 was made but the plaintiff was asked to lead his evidence. In subsequent orders also, the reference is made to the ex parte evidence of the plaintiff. In this view of the matter, the defendant No.1 is treated to have been proceeded against ex parte on 23.02.2012.

(3.) As far as the defendant No.2 ICICI Bank is concerned, the counsel for the plaintiff, as recorded in the order dated 23.02.2012, is not pressing any relief against the defendant No.2. The counsel for the plaintiff confirms the said position today also.