1. Rule. Shri Keyur Gandhi, learned advocate with M/s. Nanavati Associates waives service of notice of rule on behalf of the respondent. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

2. By way of this petition under Article 227 of the Constitution of India, the petitioners original defendants No. 1 and 2 have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 29.9.2008 passed by the learned Second Additional Senior Civil Judge, Surat passed below Exh. 5 in Special Civil Suit No. 256 of 2003, by which the learned trial Court has directed the petitioners original defendants to furnish security of Rs. 17 lacs in the form of Bank Guarantee under Order 38 Rule 5 of the Code of Civil Procedure, 1908.

3. Respondent-plaintiff had instituted the Special Civil Suit No. 256 of 2003 in the Court of learned Civil Judge (S.D.), Surat to recover Rs. 16,22,059.95. It appears that an agreement was entered into between the petitioners-defendants and respondent-plaintiff to supply Steel materials. It is the case on behalf of the petitioners that as per the agreement the goods were required to be supplied as per the agreed schedule and post dated cheque was drawn by the petitioners-defendants against the said payment only on receipt of the goods as per the agreed schedule and the post dated cheques were drawn by the petitioners which were required to be deposited after pre-confirmation from the petitioners-defendants. It appears that post dated cheques were issued by the petitioners-defendants from time to time and they were honoured and the dispute arose in March, 2002 when the purchase order for supply of 100 M.T. was placed amounting to Rs. 11,94,028/- which alleged to have been remained outstanding in the books of respondent-plaintiff. It is the case on behalf of the petitioners that the said goods were not supplied in time and therefore, the petitioners-defendants were constrained to purchase some materials in the open market at the higher rate. There was stop payment of cheques and the four cheques which were issued by the petitioners were dishonoured with an endorsement "payment stopped by the drawer". There are some criminal complaints pending before the Criminal Court for dishonour of the cheque. That Debit Notes amounting to Rs. 68,40,276.52 were raised by the petitioners-defendants being the differential amount between the agreed price and the market price. It was the case on behalf of the petitioners that they have received only 2390.550 M.T. from respondent-plaintiff against the contract to supply 6000 M.T. Steel materials. Therefore, the petitioners-defendants had filed Civil Suit No. 129 of 2003 against the respondent herein in the Court of 6th Additional Senior Civil Judge, Surat for damages. That, thereafter the respondent-plaintiff had filed the present suit being Special Civil Suit No. 256 of 2003 against the petitioners-defendants to recover Rs. 16,22,059.95 ps. In the said suit the respondent-plaintiff submitted interim application at Exh. 5 under Order 38 Rule 5 r/w Order 39 Rule 1 & 2 of the Code of Civil Procedure. That after a period of almost 5 years of filing the suit as well as the interim application Exh.5, the learned trial Court has passed the impugned oder directing the petitioners-defendants to furnish security of RS. 17 lacs in the form of bank guarantee exercising the jurisdiction under Order 38 Rule 5 of of the Code of civil Procedure. Being aggrieved and dissatisfied with the impugned oder passed by the learned trial Court directing the petitioners-defendants to furnish security of 17 lacs in the form of bank guarantee under Order 38 Rule 5 of the Code of Civil Procedure, the petitioners-defendants have preferred the present Special Civil Application under Article 227 of the Constitution of India.

4. Shri Sudhir Nanavati, learned Senior Advocate appearing for the petition