SABITRI DEVI BHOTIKA Vs. S A E INDIA LIMITED

JUDGEMENT

(1.) S.A.E. (India) Ltd., plaintiff, took on lease in June, 1966 from defendant No. I, Smt. Sabitri Devi Bhotika, premises No. 2-B, Victoria Terrace, Calcutta. The tenancy was surrendered on May 22, 1978 and at that time a sale and purchase agreement in respect of various additions, fixtures and fittings was executed between the parties. Defendant No. I agreed to purchase the same and undertook to pay Rs.l,75,000.00 by December 31, 1978 and in default defendant No. 1 was to pay interest at a rate of 18% per annum and Rs. 25.000.00 by way of liquidated damages. The other defendants are guarantors. Defendant No. 1 had paid a sum of Rs. 50.000.00 on or about 9th July, 1980 and the remaining amount was due. With these allegations, the plaintiff filed a suit under Order XXXVII of the Code of Civil Procedure on 22nd May, 1982 claiming a decree for the recovery of Rs. 2,17,093.14 with interest at the rate of 18% per annum. Summons were issued under the provisions of Order XXXVII of the Code of Civil Procedure. The defendants filed 1.A. No. 3383 of 1981 for leave to defend the suit. G.C. Jain, J. in the judgment dated October 29, 1982 expressed the view that the defendants practically had no defence and the picas raised were illusory and sham. He, however, in order to protect the interest and rights of the defendants granted permission to the defendants to defend the suit on furnishing bank guarantee for about 50% of the amount in suit plus the court fee amount. The defendants were called upon to furnish a bank guarantee by a nationalised bank within one month of the date of the order to the satisfaction of the Registrar of this Court in the sum of Rs. 1,11,000.00 .

(2.) The defendants, who are appellants before us, then filed FAO (OS) I /83 for setting aside the order of the learned Single Judge and for modifying the order so as to entitle the defendants to defend the suit without complying with the condition of the bank guarantee. The appeal came up for preliminary hearing before a Division Bench of this Court on 10th January, 1983 when the appeal was admitted. Sh. Mukhi, Advocate, accepted the notice on behalf of the respondent-piaintiff. Arguments were heard. The Division Bench after going through the records felt that grant of leave conditionally in any way could not be objected to. The Division Bench, however, opined that considering that the house property which is owned by the defendants is said to be fetching a rent of Rs. 30,000.00 is a valid and good security. It was directed that instead leave would be granted subject to the defendants furnishing security of the said house in the said amount to the satisfaction of the Registrar of the High Court and that the documents of title of the property would be deposited also with the Registrar of the Court. Six week's time was granted for compliance of that order. The appeal was disposed of.

(3.) The proceedings recorded by the Registrar on March 2, 1983 show that the security of the said house was not furnished nor title deeds deposited. The defendants, instead, wanted to file security of machinery about which a valuation report was also filed. This was not in obedience or compliance .of the orders of the Court and reflects contumacious conduct. The Registrar lightly did not consider it a valid security and as desired by the defendants listed the mailer betore Court on March 10, 1983.