TUSHAR SURESH BHUMKAR Vs. SURESH AND COMPANY

JUDGEMENT

(1.) HEARD learned Advocates for the petitioner and respondents 1 and 3. None present for respondents 2 and 4 to 8 though served. Notice was issued to respondents for final disposal of the matter at the admission stage. Inspite of the notice being served, respondents 2 and 4 to 8 have remained absent, hence it is to be presumed that they are not interested in contesting the proceedings.

(2.) UPON hearing learned Advocates for the petitioner and respondents 1 and 3 and on perusal of the record it is seen that the suit filed by the plaintiff being S. C. Suit No. 264 of 1995 for recovery of amount, stated to have remained unpaid towards the goods sold to the petitioner-defendant, was decreed by decree dated 4-1-2001. Thereafter the plaintiff filed darkhast proceedings being Spl. Darkhast No. 20 of 2001 wherein the petitioner filed application under section 47 of Code of Civil Procedure raising mainly two objections viz. that the decree has been passed in the said suit without service of summons in relation to the suit upon the petitioner and that the summons was served only on the company which was joined as party-defendant pursuant to the amendment to the cause title and as such the decree has been passed without following even the basic principles of natural justice vis-a-vis the petitioner. It was also submitted that the added defendants were never served with the summons and liability being of a limited company in terms of provisions of the Companies Act, directors thereof cannot be held to be personally liable for the amount alleged to be due from the company. The Executing Court after hearing the parties while allowing the contention of the petitioner that there was no service of summons ordered modification of the decree by the impugned order dated 30-6-2001.

(3.) THE decree dated 4-1-2001 was to the effect that the defendant-firm represented by the defendant Nos. 3 to 8 were jointly and severally liable to pay to the plaintiff sum of Rs. 2,87,892. 00 along with interest thereon at the rate of 12% per annum from 31-3-1992 until the total realization of the entire decretal amount and that the defendant-firm represented by defendant Nos. 3 to 8 were to pay the proportionate cost to the plaintiff. By order dated 30-6-2001 the said decree was modified in the following manner : 1. A sentence coming over last 2 lines of page 4 and first line of page 5 in para 9 of the judgment, in special Civil Suit No. 264/1995 shall be scored out, being written inadvertently by mistake. 2. The word, joint and several appearing in operative order of judgment and decree, shall be scored out. 3. The order to proceed without W. S. of deft. as that is recorded by my learned predecessor in order-sheet of 3-12-1997 shall be reproduced below Exhibit 1 in special Civil Suit No. 264/1995 w. e. f. first date on which the proceeding was placed before me, i. e. 9-6-2000. 4. The ex parte judgment passed in Spl. C. S. 264/95 shall be set aside if defendant deposited in Court bare suit claim of Rs. 2,67,892/- (Two lakhs sixty seven thousand and eight hundred ninety two) within 15 days from the date of this order. 5. Darkhast shall stand dismissed, for fresh trial of the suit Spl. C. S. No. 264/95 only on fulfilment of the condition of payment into Court by J. Ds and thereafter on fulfilment of the condition all the anciliery applications in the darkhast shall come to an end. 6. The darkhast shall proceed further for execution on failure of judgment debtor to deposit the amount as above, and thereafter issue warrant of attachment against the J. D. under Order 21, Rule 43 for moveables and under Order 21, Rule 54 for immoveables to proceed further for necessary action towards recovery of suit claim. 7. The parties and Advocates appeared in this darkhast shall enter their appearance in the proceeding of the suit in case that is restored to file, on account of the fulfilment of the condition. 8. Parties to bear their own costs, as to darkhast proceeding. "