Banwari Lal Sohan Lal and Others vs Om Prakash Lohiya

Vineet Kothari, J.—Heard learned Counsels.

This writ petition is directed against the order dated 21/1/2009, whereby, the learned trial court has directed while disposing of the application under Order 38 Rule 5 CPC filed by the plaintiff that the defendant shall furnish a security in the sum of Rs. 22,70,000/- and in case such security is not furnished, the property may be attached.

Learned Counsel for the defendants submitted that condition for imposing such condition in the impugned order is not satisfied as the present petitioner had denied any loan taken from the plaintiff andagainst the alleged loan given by cheque, he has already supplied Gwar Gum worth Rs. 20 lacs and odd and, therefore, only Rs. 98,548/- remained due, if any, & the condition imposed by the learned trial court is not just and proper. He relied upon certain judgments of different High Courts.

On the other hand, learned Counsel for the respondent plaintiff Mr. R.K. Thanvi relying upon the decision of Apex Court in the case of Rajendran and Ors. v. Shankar Sundaram and Ors. 2008 (1) WLC (SC) 679 urged that no prejudice is caused to the defendant petitioner if such condition is complied with by the defendant petitioners, therefore, said order cannot be interfered with in writ jurisdiction by this Court.

Having heard the learned Counsels for the parties, though this Court is satisfied that the condition for furnishing security could be imposed by the learned trial court in the impugned order, however, in the facts and circumstances of the case and nature of defence taken by the petitioner defendant, the amount of security deserves to be reduced.

Consequently, this writ petition is disposed of by reducing the amount of security from Rs. 22.70 lacs to Rs. 5 lacs. The said security be furnished within a period of one month from today.