FEROZ AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) THE admitted facts of the case, out of which this appeal has arisen, are these: The plaintiff, Feroz and Co. filed a suit against the defendant, Union of India, for the recovery of a sum of Rs. 5,00,000/ - including the security deposits amounting to Rs. 1,70,175/ - on account of the contracts entered into by him with the defendant. The suit was dismissed for default of the appearance of the plaintiff on March 27, 1964. The plaintiff filed an application for restoration on April 25, 1964. The application began with giving cause for the non -appearance of the plaintiff and then recited that the plaintiff wanted the suit to be restored only as regards his claim for recovery of the security deposits which, it was incidentally stated, was of the order of Rs. 1,00,085/ -approximately, it being added that the defendant had already stated that the amount of the security deposits will be paid to the plaintiff on production of No demand certificate. Finally it was prayed that the suit might be restored. By his order dated 4th September, 1964 Mr. Justice S. M. F. AH J, as he then was, allowed the application on payment of Rs. 250/ - as costs. The suit was subsequently assigned to Mr. Justice Jaswant Singh J. By his judgment dated October 26, 1970 the learned Judge decreed the suit for a sum of Rs. 1,00,085/ -. Aggrieved by this judgment the plaintiff has filed the present, appeal. The defendant too has filed his cross -objections. This judgment will govern the disposal of both the appeal and the cross -objections.

(2.) THE learned Single Judge has pre -faced his judgment with the narration of facts in the following words: "The present suit which was originally instituted on August 8, 1958, for recovery of rupees five lacs including Rs. 1,70,175/ - alleged to have been deposited as security for the due execution of the contracts mentioned in the petition of plaint was dismissed for default of the plaintiffs appearance on March 27, 1964. An application for its restoration to the extent of Rs. 1,00,085/ -was filed on April 25, 1964, which was allowed by Honble Ali J (as his Lordship then was) on September 4, 1964. Accordingly after the restoration of the suit the plaintiff confined his claim to the aforesaid amount of Rs. 1,00,085/ -" And, then after giving a detail of the proceedings taken by him, passed the decree, as aforesaid, observing: "It would be recalled that the plaintiffs claim was resisted merely on the ground that the plaintiffs claim could not be granted in the absence of "No demand certificate". As already stated "No demand certificates" were produced by the plaintiff on October 7, 1965, which were forwarded to the D.D.S.T.H.Q. Corps for scrutiny. Despite the lapse of more than five years the defendant has done precious little to show that those certificates were not in order. The plaintiff is therefore entitled to the relief in respect of the security deposits amounting to Rs. 1,00,085/ -. Accordingly I pass a decree in favor of the plaintiff and direct the defendant to release the security deposits totaling Rs. 1,00,085/ - in favor of the plaintiff within three months from this date failing which the plaintiffs claim to the said extent shall stand decreed and he will be entitled to realize the aforesaid amount of Rs. 1,00,085/ - from the defendant by taking out execution of the decree. As the suit, was first dismissed for default of the appearance of the plaintiff and his counsel has consented that costs may not be awarded. I make no order as to costs."

(3.) CLEARLY the learned Single Judge has proceeded on the assumption that the restoration was effective with regard to a portion only of the security deposits extending to Rs. 1,00,085/ -. The assumption is not justifiable either on facts or in law. The order dated September