BOHARA TRADING COMPANY Vs. PRAVEEN R PATEL

JUDGEMENT

(1.) -The respondent No.1 has filed an application under Article 226(3) of the Constitution of India for vacating the interim stay order passed by this Court on 17.7.2009, but at the request of the learned counsel for both the parties, the arguments were heard and writ petition is being disposed of finally.

(2.) The plaintiff-respondent No.1 filed a suit in the trial Court against the defendant-petitioners under Order 37 Rule 2 CPC based on "hundi" for recovery of original amount of Rs.5,00,000/- and interest of Rs. 1,00,000/- total Rs. 6,00,000/-. The defendants filed an application under Order 37 Rule 5 CPC to allow the defendants a leave to defend the suit on two grounds namely that plaintiff has no licence under Money Lenders Act, therefore, suit is not maintainable and that defendants have already paid a huge amount of interest, therefore, also the suit is not maintainable. The application was contested by plaintiff by filing written reply that provisions of Money Lenders Act are not applicable in the present case and defendants have not furnished any details about payment of interest alleged to have been paid to plaintiff, therefore, there is no valid defence so as to grant a leave to defend the suit.

(3.) During the pendency of the application under Order 37 Rule 5 CPC, the plaintiff filed an application under Order 38 Rule 5 CPC, which was allowed by trial Court vide order dated 31.1.2008 and defendants were directed to furnish a security of sum of Rs.10,00,000/- within a period of 15 days to the effect that in cse the plaintiffs suit is decreed, then they will pay the decretal amount. Being aggrieved with the said order, the defendants preferred S.B. Civil Misc. Appeal No. 662/2008 before this Court. The learned counsel for defendant-petitioners while arguing the civil misc. appeal submitted before this Court that appellant is willing to deposit the amount of Rs.6,00,000/- with the trial court which is being claimed in the suit by the plaintiff. In view of statement of learned counsel for appellants (petitioners herein), this Court while disposing of the appeal on 3.4.2008 directed that in case the appellant deposits an amount of Rs.6,00,000/- within the trial Court within eight weeks then impugned order passed by trial Court dated 31.1.2008 shall stand vacated, till then the appellant was restrained from alienating the propety belonging to him in any way. However, the petitioners did not deposit the amount of Rs.6,00,000/- as contended by them before this Court within time given to them and in these circumstances, the trial Court vide its order dated 4.7.2008 passed an order for attachment of properties of the petitioners, descriptions of which were given in the order. Since some of the properties attached had already been mortgaged with the bank, therefore, on an application filed by bank, the said property was released from attachment vide order dated 16.1.2009. Similarly, the other property was also released on the application of other persons, meaning thereby, the petitioners neither furnished any security, nor deposited the amount of Rs.6,00,000/- as agreed by them before this Court at the time of disposal of their Civil Misc. Appeal No.662/2008, nor any property remained under attachment.