(1) CR -156/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. (2) CR -157/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. : Order dt.14.8.08 1/4 1. S.B. CIVIL REVISION PETITION NO.156/2008 N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. 2. S.B. CIVIL REVISION PETITION NO.157/2008 N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. Date of order : 14th August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Sajjan Singh for the petitioner. Mr. Arun Bhansali for the respondent. --------- Heard learned counsels. This revision petition has been filed against the order dated 4.7.2008 passed by the learned trial Court allowing the application for the defendant under Order 9 Rule 13 C.P.C. by which, the ex-parte decree dated 5.4.2007 passed by the learned trial court was set aside and the suit No.93/2003 was restored by the learned trial court. The plaintiff has approached this Court by way of present revision petition on the limited ground that the learned trial court has erred in restoring the suit merely on the payment of cost of Rs.2,500/- whereas the learned trial court ought to have imposed the condition on defendant company for payment of part of the decreetal sum. Mr. Sajjan Singh, learned counsel for the petitioner relying on the judgment of the Hon'ble Supreme Court in case of V.K. Industries & Ors. Vs. M.P. Electricity Board, Rampur – (2002) 3 SCC 159, Tea Auction Ltd. Vs. Grace Hill Tea Industries and (1) CR -156/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. (2) CR -157/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. : Order dt.14.8.08 2/4 another reported in 2006 DNJ (SC)884 and in 2000 (10) Judgment Today 325 – Ramesh Vs. Ratanakar Bank Ltd. submitted that against the decree of Rs.10,32,799/- at least the defendant company should be required to deposit 25% of the decreetal sum besides the cost imposed. Mr. Arun Bhansali, on the side opposite, submits that no such straight jacket formula can be adopted in such matters and though it is in the discretion of the learned trial court to impose such condition or not but since the cost has already been imposed, therefore, he submits that no condition as to deposit of part of decreetal sum under the ex-parte decree is required to be imposed in exercise of revisional jurisdiction by this Court under Section 115 C.P.C. He submits that the judgment relied upon by the learned counsel for the petitioner in Ramesh Vs. Ratanakar Bank's case does not lay down any law in this regard and this judgment was considered by the Hon'ble Supreme Court in later judgment in Tea Auction Ltd. Vs. Grace Hill Tea Industries & Anr. - 2006 DNJ (SC) 884 and Hon'ble Supreme Court after considering all the case laws directed merely furnishing of security other than cash for setting aside the ex- parte decree in such matters. He, therefore, urged that no such condition is required to be imposed in the present case. The impugned ex-parte decree dated 5.4.2007 in Civil Suit No.96/2003 – N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. a copy of which judgment has been produced before this Court for perusal discloses that the suit was filed for the sum of Rs.18,51,870/- (1) CR -156/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. (2) CR -157/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. : Order dt.14.8.08 3/4 against the work done by the plaintiff as a sub-contractor for the defendant M/s Dictel India Pvt. Ltd. During the course of execution of the work, the company had paid Rs.10,78,551/-. The suit was filed for the balance amount and escalation of the charges and cost of additional work etc. done by the plaintiff, which is however, a subject matter of dispute between the parties. Learned counsel for the defendant-respondent also informed that the defendant company M/s Dictel India Pvt. Ltd. has also filed another suit at Kolkata against the present plaintiff in respect of the same contract and as a matter of fact, the defendant company has claimed certain amount from the present plaintiff. He therefore, urged that in view of rival claims between the parties such condition is not required to be imposed. 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 again set down for trial. In the facts and circumstances of the case and in view of 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 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 (1) CR -156/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. (2) CR -157/2008 - N.V. Naiyer Vs. M/s Dictel India Pvt. Ltd. & Anr. : Order dt.14.8.08 4/4 Rs.2 lacs so deposited by the defendant company may be disbursed to the plaintiff upon his furnishing his undertaking in 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/-. [ DR. VINEET KOTHARI ], J. item No.55-56 babulal/-