SUNIL B. BHOSALE Vs. KAMAL ORGANIC CHEMICALS

JUDGEMENT

(1.) The appellant has impugned the order dated 20th November, 2015, passed by the learned Single Judge, by which his Notice of Motion, seeking reconsideration of the condition, imposed by the learned Single Court vide order dated 13th November, 2009 inasmuch as, it directs the appellant to deposit a sum of Rs. 1,50,00,000/ -, came to be dismissed.

(2.) It will be necessary to set out in some detail, the factual matrix of the case, as it has a chequered history;

(3.) Mr. Dhakephalkar, learned Senior Counsel for the defendant submitted that ex -parte was set -aside by the learned Single Judge, after accepting the defendants explanation for not remaining present in the proceedings. He contended that once having accepted that the defendant was not served with the writ of summons as required by law, the conditional order directing deposit of Rs. 1,50,00,000/ - for setting aside the ex -parte decree was harsh and unwarranted. He submitted that the condition directing the defendant to deposit a sum of Rs. 1,50,00,000/ - was exorbitant and as such prayed for reconsideration/ modification of the said condition. He submitted that the Apex Court vide order dated 13th May, 2011 had permitted the defendant to file an application before the learned Single Judge for reconsideration of the order of deposit of Rs. 1,50,00,000/ - and as such, the learned Single Judge ought to have considered the prayer of the defendant for modification of the condition of deposit. He further submitted that the suit filed by the plaintiff was a suit for damages which could be quantified, only after the evidence was recorded and that it would be travesty of justice, if the defendant is directed to deposit the said amount, without the damages being assessed. He further submitted that the defendant with respect to the same transaction has also filed proceedings in the City Civil Court, being BCC Suit No. 7617 of 1997, as against the plaintiff, which is pending. He further submitted that the machinery which was supplied by the defendant to the plaintiff admittedly was for a sum of Rs. 17.34 lacs and as such the condition seeking deposit of the decretal amount of Rs. 1,50,00,000/ - was exorbitant and harsh. He submitted that pursuant to the order of the Apex Court, the defendant has deposited a sum of Rs. 50,00,000/ - before the Prothonotary and Senior Master, Mumbai in 2011 and that the defendant is ready to deposit a sum of Rs. 25,00,000/ -, without prejudice to his rights and contention. According to Mr. Dhakephalkar, the secured amount as of today, is over and above the actual machinery sold by the defendant to the plaintiff. He therefore prayed that the condition imposed by the learned Single Judge of deposit of Rs. 1,50,00,000/ - before the Prothonotary and Senior Master, Mumbai, be reconsidered/modified in the peculiar facts and circumstances of the case.