jpc 1 wp7412-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 7412 OF 2011 Sandeep Chandel s/o Dr. H. D. Singh ... Petitioner Versus M/s Sudarshan Chemical Industries Ltd. ... Respondent Mr. Rajeev R. for the petitioner Ms. Pooja Kshirsagar i/by M/s Chitnis & Co. for the respondent CORAM: R. M. SAVANT, J. DATED : 23rd December, 2011 P.C. : 1. The above petition takes exception to the order dated 7th September, 2010 passed by the learned District Judge-1, Pune, by which order, the application filed by the petitioner herein i.e. Civil Misc. Application No. 91 of 2009 came to be allowed and the exparte judgment and decree passed in Special Civil Suit No. 338 came to be set aside subject to the condition that the applicant- defendant would furnish security in the trial Court to the tune of decreetal amount or shall deposit the said amount within two months from the said date. The applicant was permitted to contest the suit on the said basis. 2. The petitioner herein was working with the respondent company as a Software engineer. It is the case of the respondent who is the plaintiff in the said Civil Suit No. 338 of 2001 that the petitioner jpc 2 wp7412-11.sxw was sent for training abroad and pursuant thereto, executed a bond to serve with the respondent company. On the petitioner leaving service and joining some other company abroad that the said suit came to be filed by the respondent company. In the said suit, the claim of the respondent company is to the tune of Rs.2,98,735/- which includes the claim as and by way of damages. The said suit came to be decreed by the judgment and order dated 9th June, 2006 and decree to the following effect was passed. 1. The suit is decreed. 2. The defendant shall pay an amount of Rs.2,98,735/- (Rupees Two lacs Ninety Eight Thousand seven Hundred thirty Five only) to the plaintiff with interest at the rate of 6% p.a. From the date of suit till realization of the amount. 3. Defendant shall pay costs on decreetal amount to the plaintiff and shall bear his own cost. 4. Decree be drawn accordingly. 3. The petitioner herein did not participate in the said proceeding though he was served as the summons was published in a daily newspaper having circulation in Pune. The petitioner herein applied for setting aside the exparte decree by filing an application being Misc. Application No.91 of 2009. in the said application the petitioner submitted that he was with the new company in foreign country and it was very difficult in keeping contact with the family members and jpc 3 wp7412-11.sxw friends and therefore he was not aware of the suit being filed against him. The applicant also took exception to the manner in which the summons were sought to be served upon him. The petitioner/ applicant therefore prayed for setting aside the ex-parte decree so that the matter could be adjudicated upon on merits. The petitioner also applied for condonation of delay of 222 days caused in filing the said application. The said application was heard by the learned District Judge and by the impugned order dated 7th September, 2010 the said Misc. Application No.91 of 2009 came to be allowed. However, whilst allowing the said application, considering the facts of the present case, the learned district Judge though it fit to issue the direction as contained in clause (ii) of the operative part of the said order which are reproduced herein under: (ii) The exparte Judgment and Decree passed in Special Civil Suit No. 338 of 2001 , is hereby set aside, subject to the condition that the applicant-defendant shall furnish security in the trial Court to the tune of decreetal amount or shall deposit the said amount in the Court within two months from today.” The said order dated 7th September, 2010 is challenged on the ground that no such directions could have been issued as are contained in paragraph (ii) of the said order. 4. It is required to be noted that the respondents had taken steps jpc 4 wp7412-11.sxw to serve the writ of summons on the petitioner, by even trying to serve him at his father’s address at Varanasi but ultimately had to take recourse to substituted service under Order 5 rule 20 of the Code of Civil Procedure to effect service on the petitioner. It is undisputed fact that the petitioner was serving abroad as it is his own statement in the application that in view of his engagement abroad, he was not in touch with his family members. It is also required to be noted that it is the case of the respondent company that the petitioner was sent abroad for training and that he had executed a bond in favour of the respondent company that he would serve them for a particular period, the petitioner however had allegedly breached the said bond. 5. In the light of the aforesaid facts, in my view, the direction of the First Appellate Court as contained in the impugned order cannot be taken exception to, as the First Appellate Court in the facts and circumstances of the case thought it fit to secure the interest of the plaintiff, pending the suit. In my view, therefore, no case for interference with the said order dated 7th September, 2010 is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. The Writ Petition is accordingly dismissed. (R. M. SAVANT, J.)