JUDGMENT - S.S. NIJJAR,J.:---This order will dispose of Notice of Motion Nos. 2023/97 and 2167 of 1997.

These two Notices of Motion have been taken out for setting aside the ex parte decrees dated 20th July, 1995 against defendant No. 1 and 18th October, 1995 against defendant No. 2. The plaintiff is carrying on business in the name and style of "Oriental Finance Company". On 23rd August, 1991 the plaintiff had advanced a sum of Rs. 1,00,000/- to the firm of Dayal Dosabhai Co. The firm had given post dated cheques in favour of the plaintiff dated 25th November, 1991. The firm also handed over three other post dated cheques for interest for Rs. 1500/- Rs. 1500/- and Rs. 1700/- which covered the interest for the period upto 25th November, 1991. Defendant Nos. 1 and 2 guaranteed the repayment of the amount. Two guarantees were given in writing by defendant Nos. 1 and 2 dated 23rd August, 1991. On presentation of the post dated cheques by the plaintiff to the bank, it was dishonoured with the remarks" insufficient funds". Plaintiff gave advocate's notice dated 17th December, 1991 recording the fact of dishonour of the cheques and calling upon the firm to make the payment. This notice was served at the address of defendant No. 1. The letter addressed to the firm was, however, returned by the postal authorities with the remarks: intimation issued, not claimed". After the issuance of the notice a part payment of Rs. 10,000/- has been made by the firm to the plaintiff on 24th December, 1991. No further amounts have been paid. Thus the suit wad filed suing defendant No. 1 in his personal capacity as also the legal representative of the deceased Dayal Dosabhai who represented himself to be the Proprietor of Dayal Dosabhai Co. Defendant No. 2 is sued in his capacity as guarantor. The claim made in the plaint is for a principal sum of Rs. 90,000/- together with 18 per cent interest.

2.From the various pleadings the following facts have emerged. That the loan was given on 23rd August, 1991. The post dated cheque was dated 25 November, 1991. It was dishonoured on 4th December, 1991. Notice of dishonour was given on 17th December, 1991. The suit is filed on 23rd December, 1991. Part payment in the amount of Rs. 10,000/- is made by the firm on 24th December, 1991. Around the same time the plaintiff also filed a complaint in the Court of Additional Chief Metropolitan Magistrate under section 138 of the Negotiable Instruments Act. The hearings in the aforesaid complaint commenced in January, 1992 and culminated in the conviction of defendant No. 1 on 16th May, 1995. Appeal was filed against the order of conviction by defendant No. 1 which has been partly allowed on 31st July, 1995. Ex parte decree against defendant No. 1 was passed on 20th July, 1995. Decree against defendant No. 2 was passed on 18th October, 1995. The plaintiff made an application for payment of the compensation awarded by the Magistrate dated 31st August, 1995. The application was allowed on the same date. The voucher for payment was issued in August, 1996. Both the Notices of Motion have been taken out on the two grounds that there is suppression of material facts by the plaintiff and that the defendants did not attend to the proceedings in the Civil Court as the plaintiff had deliberately misled them by stating that in view of the criminal proceedings he would not proceed with the civil suit. It is, therefore, stated that the ex parte decrees ought to be set aside.

3.In support of the Notice of Motion, Ms. Nichani has submitted that defendant No. 1 was convicted on 16th May, 1995 and the Magistrate has ordered defendant No. 1 to undergo rigorous imprisonment for three years and to pay a fine of Rs. One lakh. Defendant No. 2 was, however, acquitted. It was further ordered that if amount of fine is paid or recovered, Rs. 90.000/- be given to the complainant towards compensation after period of appeal is over. The appeal was partly allowed. The sentence of imprisonment was

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