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2023 Supreme(P&H) 1603
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vikram Aggarwal, J.
Guru Nanak Rice Mills (M/s) & Ors. – Appellants
Versus
Hardial Singh (M/s) – Respondent
CR No. 2280 of 2023
Decided On : 02-09-2023
For the Appellant : Mr. Prabhjot Singh
For the Respondent: Mr. K.B.S. Mann
Headnote:(A) Code of Civil Procedure, 1908 - Order 9 Rule 13 - Setting aside of ex parte judgment - Petitioners were proceeded against ex parte due to non-service of summons, and the trial court allowed the application to set aside the ex parte judgment and decree while imposing a condition for a bank guarantee. The court found the condition unsustainable due to clear findings that no summons were received by the petitioners. (Paras 1, 7, 8)
(B) Legal principles - The trial court's discretion to impose conditions while setting aside judgments under Order 9 Rule 13 must be exercised judiciously and in line with the principles of natural justice. (Paras 4, 5)
Facts of the case:
The petition concerns the order allowing the application of the petitioners under Order 9 Rule 13 CPC to set aside an ex parte judgment and decree for recovery of a substantial amount, on grounds of non-service of summons.
Findings of Court:
The trial court's order to set aside the ex parte judgment was upheld, but the condition for providing a bank guarantee was deemed inappropriate and set aside.
Issues: The key issue was whether the imposition of a bank guarantee was justified, given the clear finding of lack of service.
Ratio Decidendi: The court held that a mere finding of no service of summons invalidates the rationale for imposing a bank guarantee; the respondent can seek recourse to protect their interests through other legal means.
Result: Revision petition allowed.
| Table of Content |
|---|
| 1. defendants' absence leads to ex parte judgment. (Para 2) |
| 2. arguments on the necessity of a bank guarantee. (Para 4 , 5) |
| 3. court finds imposed condition unsustainable. (Para 7 , 8) |
| 4. revision petition leads to setting aside bank guarantee condition. (Para 9) |
Judgment
Mr. Vikram Aggarwal, J.
The present revision petition assails the order dated 30.01.2023, vide which the application filed by the petitioner under Order 9 Rule 13 CPC was allowed and the ex parte judgment and decree dated 30.10.2018 (Annexure P-2) was set aside but a condition was imposed that the ex parte judgment and decree was being set aside subject to the present petitioner furnishing a bank guarantee qua the decretal amount within 20 days, failing which the petition under Order 9 Rule 13 CPC would stand dismissed.
2. The facts, as emanating from the petition, are that a suit for recovery of Rs.13,57,968.97/- was filed by the respondent-plaintiff against the petitioners-defendants (Annexure P-1). However, the petitioners-defendants did not appear in the said suit as a result of which they were proceeded against ex parte and ex parte judgment and decree dated 30.10.2018 (Annexure P-2) was passed. An application under Order 9 Rule 13 CPC (Annexure P-3) was filed by the petitioners-defendants for setting aside the said ex pare judgment and decree. The same was opposed by way of a reply (Annexure P-4). However, vide order dated 30.01.2023 (Annexure P-5), the application was allowed. A categoric finding was returned that the petitioners-defendants had not been served in the suit. However, the ex parte judgment and decree was set aside but a condition was imposed that the petitioners-defendants would furnish a bank guarantee with regard to the decretal amount. It is this condition which led to the filing of the present revision petition.
3. I have heard learned counsel for the parties and have perused the paper book.
4. Learned counsel for the petitioners has submitted that once the trial court had returned a finding that the petitioners-defendants had not been served, there was no occasion for the trial Court to impose the condition of furnishing of a bank guarantee.
5. On the other hand, learned counsel representing the respondent-plaintiff has submitted that the condition was imposed keeping in view the conduct of the petitioners-defendants as they were having the knowledge of the pendency of the Civil Suit since the complaint under Section 138 of the Negotiable Instruments Act, 1881, was also pending between the parties. Learned counsel submitted that the condition of furnishing of bank guarantee was imposed to safeguard the rights of the respondent-plaintiff.
6. I have considered the submissions made by learned counsel for the parties.
7. The trial Court allowed the application filed by the petitioners-defendants under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree. A categoric finding was returned by the trial Court that no summons had ever been received by the petitioners-defendants and that they had been proceeded against ex parte on the basis of receipt of registered cover which had been received back unserved. Even the summons issued by way of the normal process had not been received back served or otherwise. The contention of the respondent-plaintiff that the petitioners-defendants had due knowledge of the pendency of the Civil Suit was rejected. The trial court went on to allow the application under order 9 Rule 13 CPC but while setting aside the ex parte judgment and decree dated 30.10.2018 (Annexure P-2), a condition was imposed that the petitioner-defendants would furnish a bank guarantee for Rs.13,57,968.97/- within 20 days, failing which the petition under Order 9 Rule 13 CPC would stand dismissed.
8. In the considered opinion of this Court, the condition so imposed is completely unsustainable in view of the categoric findings returned by the trial Court with regard to the service. In so far as safeguarding of int
