BANK OF OMAN LIMITED Vs. EAGLE ENTERPRISES

JUDGEMENT

(1.) THIS Notice of Motion has been taken out by the defendants excepting the defendant No. 12 (hereinafter referred as The defendants) for setting aside the order dated 25th April, 1991 passed on plaintiffs Notice of Motion No. 1479 of 1989.

(2.) IN respect of packing credit facility and over draft facility granted by the plaintiffs. Bank to the 1st defendants firm, the plaintiffs have filed the present suit to recover a Sum of Rs. 32,19,001,40 together with interest as prayed for in the plaint filed. The plaintiffs took out a Notice of Motion, being the Notice of Motion No. 1479 of 1989 in the suit for appointment of Receiver and for injunction as prayed for therein. On an application made for ad-interim reliefs, on 15th June, l989, Pratap. J. . (as he then was) granted ad-interim injunction interms of prayer (b) of the said Notice of Motion. The said Notice of Motion was served upon defendants in the month of June, 1989. However, for the reasons best known to the defendants no affidavit-in-reply to the said Notice of Motion was filed by the defendants till the said Notice of Motion reached hearing before Suresh, J. , (as he then was) on 25th April, 1991. At the hearing of the said Notice of Motion on 25th April, 1991, the former advocate for the defendants appeared and applied for adjournment of the hearing. Suresh, J. , was pleased to reject the said application. On 25th April, 1991, the said Notice of Motion taken out by the plaintiffs was made absolute in terms of prayers (a) and (b) thereof. By the said order, Court Receiver was granted liberty to have the ornaments described in Exh. J to the plaint sold without any further order. As regards the Bungalow and the Flat mentioned in Exhs. A and C to the plaint, the Court Receiver was directed to take mere formal possession and to allow the defendants to continues to be in possession thereof. The Receiver was directed to fix royalty amount payable by the defendants in respect of the said Bungalow and the Flat. Being aggrieved by the said Order, the defendants preferred an Appeal being Appeal No. 484 of 1991, in the month of May, 1991, which was unconditionally withdrawn by the defendants on 8th July, 1991.

(3.) MR. Bansal, the learned Counsel appearing for the defendants, submitted that the order passed by Suresh, J. , on 25th April, 1991, is an ex parte order as the defendants were not heard prior to the passing thereof and as such, the same, in the circumstances of the case, be set aside by this Court. In support of his submission, Mr. Bansal has placed reliance on judgments reported in A. I. R. 1924 Bombay 139 and A. I. R. 1961 Rajasthan 88.