KIRTI ENTERPRISES Vs. NIRMA CONSUMER CARE LTD

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of india, petitioners have prayed for an appropriate writ, order or direction, quashing and setting aside the condition imposed on the petitioners for depositing a further sum of Rs. 6. 00 lakhs by the learned Chamber Judge, city Civil Court at Ahmedabad vide order dated 2. 9. 2008 below Exh. 1 in Civil Misc. Application No. 50 of 2008.

(2.) RESPONDENT herein-original plaintiff had instituted Civil Suit no. 1044 of 1999 in the City Civil Court at Ahmedabad under Order 37 of the Code of Civil Procedure claiming Rs. 31,73,093. 53 ps/- with interest at the rate of 24% p. a. It appears that an ex-parte decree came to be passed by the learned Judge of the City Civil Court at Ahmedabad on 27. 8. 1999 in the aforesaid Civil Suit No. 1044 of 1999. It is the case on behalf of the petitioners that they were never aware of the suit proceedings as also above the decree passed by the learned trial court in the aforesaid suit and for the first time they came to know on 11. 1. 2008 about the suit proceedings when the respondent initiated execution proceedings in 2008. It is also the case on behalf of the petitioners that they were never served with any summonses in the suit proceedings and they were unaware about the suit proceedings and the decree passed by the trial court. That thereafter immediately on coming to know about the aforesaid ex-parte decree, the petitioners preferred Civil misc. Application No. 50 of 2008 before the City Civil Court at Ahmedabad for setting aside the ex-parte judgment and decree. In the said application the petitioners took out notice of motion requesting to stay the execution proceedings. That the learned Judge of the City Civil Court at ahmedabad granted the stay of the execution proceedings vide order dated 21. 1. 2008 on condition that the petitioners deposit an amount of rs. 6. 00 lakhs within four weeks and file undertaking for the same within two days. It appears that the petitioners have deposited Rs. 6. 00 lakhs with the trial court in compliance of the order dated 21. 1. 2008.

(3.) SHRI P. M. Dave, learned advocate appearing on behalf of the petitioners has vehemently submitted that when the Civil Misc. Application no. 50 of 2008 submitted by the petitioners-defendants for setting aside the ex-parte decree has been allowed by the learned Judge on merits, the condition imposed by the learned Judge to deposit further sum of rs. 6. 00 lakhs is absolutely unwarranted and/or arbitrary which deserves to be quashed and set aside. It is further submitted that when the learned Judge has specifically held that the summonses were not duly served upon the defendants and observing the same when the learned judge has quashed and set aside the ex-parte judgment and decree, further condition to deposit a further sum of Rs. 6. 00 lakhs is absolutely unreasonable more particularly when while granting the stay of execution proceedings the petitioners had deposited Rs. 6. 00 lakhs. It is further submitted that as such by directing the petitioners to deposit a further sum of Rs. 6. 00 lakhs would tantamount to taking away the right of the petitioners-defendants to submit an appropriate application for leave to defend more particularly when there are so many serious triable issues and therefore it is requested to allow the present petition.