RSA No.3269 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3269 of 2010 (O & M) Date of Decision: 25.04.2011 The Director, Research and Medical Education, Punjab and others ……Appellants Versus K. R. Gargi …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vivek Chauhan, AAG, Punjab for the appellants. Mr. A. K. Khunger, Advocate for respondent. L.N. MITTAL, J (ORAL) This is second appeal by defendants (functionaries of State of Punjab), having lost in both the Courts below. Plaintiff-respondent-K.R. Gargi filed suit against the appellants for recovery of Rs.18,85,063/-. The suit was filed under Order XXXVII of the Code of Civil Procedure (in short, CPC). Plaintiff supplied material to the defendants for Rs.9,91,650/- on 29.10.2001. Defendant No.3 issued cheque dated 02.05.2002 for the said amount to the plaintiff, but the cheque was dishonoured. The defendants failed to make payment of the said amount. Accordingly, plaintiff claimed the said amount as principal amount and Rs.8,93,413/- as interest thereon at the agreed rate of 24% per annum till filing of the suit. RSA No.3269 of 2010 (O & M) - 2 - Trial Court, on application of defendants, vide order dated 14.09.2005 granted leave to the defendants to defend the suit subject to furnishing of security bond for the sum of Rs.19,00,000/- with one surety in the like amount. Case was adjourned to 16.11.2005 for furnishing of surety bonds as well as for filing of written statement and again adjourned on 16.11.2005 to 18.01.2006 for the same purpose on request of defendants for extension of time for furnishing the surety. However, on 18.01.2006 neither surety bonds were furnished nor written statement was filed. On the contrary, defendants moved application for review/modification of order dated 14.09.2005. Prayer was made in the application to waive the condition of furnishing surety bond and to grant leave to defend the suit without any pre-condition. The aforesaid application was dismissed by the trial Court vide order dated 15.01.2009. The suit was thereafter decreed by the trial Court vide judgment and decree dated 04.02.2009 for recovery of principal amount of Rs.9,91,650/- with interest thereon at the rate of 12% per annum from the date of purchase of the articles/goods till recovery. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Bathinda vide judgment and decree dated 31.10.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that in terms of Order XXXVII Rule 3(6)(v) CPC, the trial RSA No.3269 of 2010 (O & M) - 3 - Court while granting leave to defend the suit vide order dated 14.09.2005 on the condition of furnishing surety bond, did not specify any time frame for furnishing of the surety bond and, therefore, aforesaid mandatory provision has not been complied with. It was also pointed out that after dismissal of defendants’ application for review of order dated 14.09.2005 vide order dated 15.01.2009, no time was granted to the defendants to furnish surety bonds in compliance with original order dated 14.09.2005. On the other hand, learned counsel for the respondent- plaintiff contended that defendants failed to furnish requisite surety bonds inspite of availing two adjournments and did not furnish the surety bonds even after their review application was dismissed vide order dated 15.01.2009, although the suit was not decreed on the same day, but was decreed vide judgment and decree dated 04.02.2009. I have carefully considered the aforesaid contentions. Keeping in view all the facts and circumstances of the case and also the fact that after dismissing the review application of defendants vide order dated 15.01.2009, no opportunity was given to the defendants to furnish the requisite surety bond, I am of the considered opinion that ends of justice would be met if the suit is remanded to the trial Court, subject to the fulfilment of certain conditions by the defendants. For the reasons aforesaid, the instant appeal is allowed. Judgments and decrees of the Courts below are set aside and suit is RSA No.3269 of 2010 (O & M) - 4 - remanded to the trial Court for fresh decision in accordance with law subject to the following conditions:- 1. Defendants shall pay Rs.25000/- as costs to the plaintiff-respondent. 2. Defendants shall pay Rs.5,00,000/- to the plaintiff within three months from today, but the same shall be without prejudice to the merits of the suit and subject to outcome thereof. 3. Defendants shall furnish surety bonds as ordered vide Order dated 14.09.2005 of the trial Court within three months from today, to the satisfaction of the trial Court. File of the Courts below be sent back at once. Parties are directed to appear in the trial Court on 18.05.2011. (L. N. MITTAL) JUDGE 25.04.2011. A.kaundal