C.R.No.1091 of 2009 (O&M) 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.1091 of 2009 (O&M) Date of decision: 18.7.2011 Philadelphia Hospital,Ambala City and anothers ...Petitioners vs Suman and another ....Respondents CORAM: MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Hemant Bassi, Advocate, for the petitioners. None for the respondents. -- Rakesh Kumar Garg,J.(Oral) C.M.No.22222-CII of 2010 For the reasons mentioned in the application the order dated 3.8.2010 is recalled and the revision petition is restored to its original number and is being disposed of on merit. C.R.No.1091 of 2009. Petitioner is aggrieved of the order dated 24.5.2008 whereby the Additional Civil Judge (Senior Division),Ambala City, dismissed the application of the petitioners for release of bank guarantee executed in their favour by respondent No.1. As per the brief facts, respondent No.1 was granted admission in the Nursing Course subject to the condition that she will serve the petitioner/institution for a period of two years after completing her Nursing Course. Respondent No.1 Plaintiff respondent had also executed an C.R.No.1091 of 2009 (O&M) 2 Agreement/Bond to serve the petitioner for two years. A civil suit was filed by respondentNo.1 praying that the aforesaid agreement for bonded service be declared as illegal, null and void and not binding upon her rights. Mandatory injunction was also prayed directing the petitioner to return her original certificates etc. Along with the suit, an application under Order 39 Rule 1 and 2 CPC was also filed for interim injunction, which was declined. However, on appeal against the said order, the Additional District Judge Ambala directed the petitioner to release the documents/certificates of plaintiff-respondent on furnishing of a Bank Guarantee for a sum of Rs.1,00,000/-. Accordingly plaintiff- respondent furnished Bank Guarantee dated 31/12/2007 for a sum of Rs.1,00,000/- which was valid upto 26.5.2008. Vide judgment dated 1.5.2008, a decree for mandatory injunction was passed in favour of the plaintiff-respondent which reads thus:- “ It is ordered that decree for mandatory injunction is passed in favour of the plaintiff and against defendants directing them to return the original certificate, mark-sheet and diploma certificate to plaintiff. Suit of plaintiff seeking decree for declaration is dismissed. Suit of the plaintiff is hence, partly decree with no order as to costs”. It is also not in dispute that the judgment dated 1.5.2008 became final between the parties. After the judgment dated 1.5.2008 the petitioner moved an application before the Civil Court for release of the bank guarantee in their favour submitting that since the suit of the plaintiff-respondent for declaration was not granted and the bond agreement was held to be legal, C.R.No.1091 of 2009 (O&M) 3 they were entitled to the release of bank guarantee. However, the trial Court dismissed the aforesaid application by observing that the order of furnishing bank guarantee was passed by way of interim arrangement on an application under Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure, and after the suit was finally decided on 1.5.2008 in favour of the plaintiff-respondent, the Court could not pass any order of release and they were not entitled to the said amount as there was no express direction in their favour. It is relevant to refer to para 19 of judgment dated 1.5.2008 passed by the Civil Court which reads thus:- “In view of the entire oral as well as documentary evidence led on record, it is clear that plaintiff has failed to prove the agreement for bonded service between her and defendant no.2 as forged and fake document. Hence, the same cannot be declared as illegal, null and void. However, it is alleged by plaintiff that her documents were retained by defendants illegally. As per defendants they have got lien over the documents of plaintiff but defendants have failed to establish on record their lien on the documents and the agreement for bonded service also no where mention that document of plaintiff would be withheld in case of her non-compliance with the terms and conditions of agreement. As per agreement, in case of breach of terms and conditions, plaintiff was liable to pay a sum of Rs.one lac to defendants. Defendants can recover the amount from plaintiff in case breach of terms of agreement. Hence, plaintiff is entitled to recover original certificate i.e. mark-sheet and diploma certificate from defendants. In view of the same, issue No.1 is not proved by the plaintiff, hence same is decided against her. While plaintiff has proved that she is entitled to receive her original certificates, hence, issue no.2 is proved and the same is decided in her favour”. C.R.No.1091 of 2009 (O&M) 4 Thus, it was held by the Civil Court decree dated 1.5.2008 that petitioner had no lien on the documents of plaintiff-respondent and was directed to release the documents. It was observed by the Court that in the Agreement for Bonded Service it was nowhere mentioned that documents of the plaintiff-respondent would be withheld in case of non compliance of the terms and conditions of the Bond/Agreement. The petitioner could recover the amount for breach of conditions of Agreement, if any, as per law. It may also be noticed at this stage that the petitioner has already filed a suit for recovery of a sum of Rs.one lac in terms of the agreement. In this view of the matter, I find no merit in this revision petition and the same is hereby dismissed. (Rakesh Kumar Garg) Judge July 18, 2011 rk