SUDHIRBHAI R PATEL Vs. BANK OF BARODA

JUDGEMENT

(1.) This is an appeal under Order 43 Rule 1(s), Civil Procedure Code against the order of the learned Additional District Judge No. 2, Ajmer dated February 21, 1989 by which he has appointed Shri Om Prakash Mangal, Advocate for the protection and preservation of the properties of the defendant- appellant No. 2 M/s Primado Marbles Pvt. Ltd., Makrana. The facts of the case giving rise to this appeal may be summarised thus.

(2.) In the year 1986, the plaintiff-respondent No. 1 filed a suit for the recovery of certain amount against the defendant-respondent No. 2 M/s Primado Marbles Pvt. Ltd., Makrana. The appellant and the respondents Nos. 3, 4 and 5 were impleaded in the suit as defendants, being Directors of the Company. They could not personally be served with the summons. Their summons were published in newspapers. In the year 1989, they moved applications for setting aside the exparte orders passed against them. Meanwhile, an application under Order 40 Rule 1, Civil Procedure Code was moved for the appointment of a Receiver. In their reply, Praveen Bhai D. Patel (defendant No. 2) and Jetindra Bhai N. Patel (defendant No. 3) submitted that they have ceased to be the Directors of the defendant company M/s Primado Marbles Pvt. Ltd. and in their place M.S. Choudhary and R.S. Choudhary had been appointed as Directors. The other defendants pressed for first deciding their applications for setting aside the exparte orders passed against them. After hearing the learned counsel for the parties, the learned Trial Court passed the impugned order.

(3.) It has been contended by the learned counsel for the defendant- appellant that the learned Trial Court should not have passed the impugned order before deciding the said application for setting aside the ex parte order passed against the defendant-appellant. He also contended that the date fixed in the case for hearing arguments on the said application moved under Order 40, Rule 1, Civil Procedure Code was preponed and no information was given to the defendant-appellant about the preponed date. He further contended that no notice either of the suit or of the application moved under Order 40 Rule 1, Civil Procedure Code was given to the new Directors M.S. Choudhary and R.S. Choudhary. He also contended that appointment of Receiver is a very harsh remedy, it is not just and equitable to appoint a Receiver under the facts and circumstances of the case, The properties are being properly preserved by the present Directors, there was no urgency for appointing a Receiver and if the Receiver is allowed to take possession of the factory of the defendant-respondent No. 2, it would not be able to do business in future. He lastly contended that the defendant-appellant has returned to India and he should have been appointed as a Receiver instead of Shri Om Parkash Mangal, Advocate.