S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD S.B.CIVIL WRIT PETITION N O.7818/2008 N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD S.B.CIVIL WRIT PETITION NO.7819/2008 DATE OF ORDER : 4th March 2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.J.K.Bhaiya, for the petitioner. Mr.Arun Bhansali, for the respondent. 1. Heard learned counsels. 2. These two writ petition are filed by the petitioner plaintiff being aggrieved of the order dated 23/9/2008 passed by the learned trial court refusing to recall its earlier order dated 8/9/2008, whereby, the learned trial court accepted the solvent security furnished by the defendant in pursuance of the judgment of this Court dated S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 2/6 14/8/2008 while disposing of earlier two revision petitions filed by same plaintiff namely S.B.Civil Revision Petition No.156/2008 and 157/2008. This Court in operative part of the order while allowing the application under Order 9 Rule 13 and restoring the suit for fresh trial as directed as under:- “However, this Court is of the view that the ex- parte decree to the sum of Rs.10,32,799/- passed by the learned trial court was set aside on the application under Order 9 Rule 13 on the cost of Rs. 2,500/- and the suit is against set down for trial. In the facts and circumstances of the case and in view of the case laws cited at the Bar, this Court is of the opinion that interest of justice would be met if the reopened suit is tried subject to the condition that the defendant company M/s Dictel India Pvt. Ltd. deposits a sum of Rs.2 lacs with the trial court and furnishes security to the satisfaction of the trial court during the pendency of the said suit to the extent of remaining part of the decreetal sum i.e. Rs.8.32,799/-. The said security may be furnished within a period of one month from today. The amount of Rs.2 lacs as deposited by the defendant company may be disbursed to the plaintiff upon his furnishing his undertaking in S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 3/6 the trial court that in case the suit is rejected, the said sum received by him shall be refunded back by him with interest at the rate of 9% per annum. With these observations, this revision petition No.156/2008 is disposed of. The revision petition no.157/2008 is also disposed of in view of the judgment of even date in Revision Petition No.156/2008. However, in that case the defendant company shall furnish only the security other than cash to the extent of decreetal sum i.e Rs.40,000/-” 3. Learned counsel for the petitioner plaintiff submits that the work in progress certificate given by the defendant company was not the current asset of the company, therefore, was not sufficient solvent security and, therefore, the learned trial court erred in refusing to recall the order dated 8/9/2008. 4. This contention is strongly opposed by the learned counsel for the defendant company Mr.Arun Bhansali, who submits that this Court had directed in judgment dated 14/8/2008 the defendant S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 4/6 company to deposit part of the decreetal sum and besides said deposit, solvent security was to be furnished by the company to the satisfaction of the trial court. He submitted that work in progress includes various stocks, raw material etc. at the site and, therefore, they definitely form part of the current asset of the defendant company in respect of solvent security so furnished by the defendant company and same was accepted by the learned trial court by order dated 8/9/2008 and, therefore, there was no question of recalling that order and application filed by the plaintiff was absolutely misconceived and same was rightly rejected vide order dated 23/9/2008. He, therefore, prayed for dismissal of the writ petitions with exemplary costs. 5. Having heard learned counsels, this Court is of the opinion that these writ petitions filed by the plaintiff is gross abuse of judicial process under Article 227 of the Constitution. While setting aside the ex-parte decree vide order dated 14/8/2008, this Court had taken adequate care as can be seen from the above quoted portion of the order that besides deposit of some portion of the decreetal amount under the ex-parte decree, the defendant company was also directed S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 5/6 to furnish solvent security to the satisfaction of trial court, though such a condition was not necessary as the suit was to be tried again by the trial court. Once the trial court accepted such solvent security, it is not open for the plaintiff to raise any objection to the same, however, not only plaintiff filed an application for recalling the order dated 8/9/2008 by which the learned trial court accepted the solvent security but also invoked the jurisdiction of this Court again by way of these petitions which shows that plaintiff instead of pursuing and prosecuting his suit which has been restored to the trial court by allowing the application under Order 9 Rule 13 PC, he somehow wants to keep the proceedings pending and harass the defendant unnecessarily by dragging him to this Court against and again. Such a practice and abuse of process of law by the plaintiff cannot be appreciated. No error is found in the impugned order passed by the learned trial court, on the other hand plaintiff clearly appears to have abused the process of court by filing present writ petitions. 6. Accordingly, these writ petitions are dismissed with cost of Rs.1000/-. The cost may be paid to the defendant. S.B.CWP N O.7818/2008-N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. 2.SBCWP NO.7819/2008- N.V.NAIYER VS. M/S DICTEL INDIA PVT. LTD. Order dt: 4/3/2009 6/6 (DR.VINEET KOTHARI), J. item no.31&32 baweja/-