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Judgment
The plaintiff has instituted this suit for recovery of Rs. 1,59,740.73 paise under Order 37 of the Code of Civil Procedure. On summons being served on the defendants, the defendants had put in appearance. plaintiff moved an application, I.A. 426/90 for issuance of summons for judgment on the defendants. Sh. H C Suril defendant No. I was present in Court on January 19, 1990 and he accepted the copy of the said application along with Annexures. The directions were then issued for issuance of summons for judgment on defendants 2 and 3.
Defendant No. I has not moved any application seeking to leave to defend but has put forward an application, I.A. 2138/90 praying that proper summons for judgment, as required under Form 4-A of Appendix Schedule B of CPC be directed to be served on defendant No. 1. This application, in my opinion, is totally misconceived, Defendant No. 1 was present in Court on January 19, 1990 when plaintiff''s application, I.A. 426/90, had come up for hearing praying for issuance of summons for judgment on the defendants. Defendant No. I accepted the summons for judgment in the manner that he was supplied a copy of the I. A. 426/90 along with its Annexures. After all, the purpose of effecting service of summons for judgment on a defendant is to enable the defendant to file an application seeking leave to defend within the stipulated period. Where a particular defendant is present in Court, there is no impediment in making him aware of summons for judgment in Court itself by supplying him the copy of the application including the Annexures. The Appendix ''B'' Form 4-A reads as follows:
"SUMMONS FOR JUDGMENT IN A
SUMMARY SUIT
(0. 37, R. 3)
(Title)
In the ... Court, at ... Suit No ... of 19.......... XYZ .... ........ plaintiff Versus ABC.... .. ......... ... . Defendant Upon reading the affidavit of the plaintiff the Court makes the following order, namely:
Let all parties concerned attend the Court or Judge, as the case may be, on the ... day of...19 .....at ...O''clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs .........and for interest and costs.
Dated the day of 19. . "
Defendant No. 1, by consenting to accept the summons for judgment by having the copy of the application and Annexures, in my allowed the Court to proceed further in the case by giving directions for service of summons for judgment on remaining defendants and thus, he is now stopped from pleading that he had not been served with summons for judgment, as required by the provisions of law. For filing the application for leave to defend, the defendant No. I only needed the copy of the plaint, copies of the documents relied upon in the plaint and the copy of the application seeking issuance of summons for judgment including the Annexures of the application which defendant No. I was duly supplied. Hence, it cannot be now held that any fresh summons for judgment are required to be served on defendant No. I His application is liable to be, dismissed.
Defendants 2 & 3 have moved 1. A. 2673/90 seeking condensation of delay in moving the leave to defend the application, I.A. 2672/90. As far as the application seeking condensation for delay is concerned, it is averred that necessary application for leave to defend was prepared and even affidavits were got attested from defendants 2 & 3) on February 26, 1990 within the prescribed period of'' 10 days but due to so me mistake of the counsel''s clerk, the application was not filed in Court and was mixed up in some other papers and it is only on March 3, 1990 that it was discovered that the application had not been moved, so the same was filed on that very date along with this very application seeking condensation of delay. The affidavit of the counsel''s clerk has been filed along with the application. Keeping in view these facts, I hold that it is a fit case for condensation of delay. So, I condone the delay and allow this application, 1. A. 2673/90.
Now coming to the application seeking leave to defend, facts of the case, in brief, are that defendant No. I was employed as Executive Assistant with the plaintiff company and during the course of his employment, he obtained house building advance totalling Rs. 1,02,726/- and he executed five agreements on respective dates when he was advanced the loan Installments. Under the requirements of House Building (Advance & Recovery) Rules of the plaintiff'' company, defendants 2 & 3 who were also employees of the plaintiff company stood surety for defendant No. I and executed necessary Surety Bonds by which they became jointly and severally liable for payment of the loan in case defendant No. I was to commit the default in payment of Installments. The loan was bearing interest @ 7.5% annum. Under the Rules, if there was to be default in payment of Installments, then the interest payable was 19% per annum or 2% over and above plaintiff''s borrowing rates in respect of its cash credit account with the State Bank of India applicable from time to time.
Defendant No. I was removed from the service of the plaintiff December 26, 1986 and under the terms of the loan, he become liable to refund the outstanding loan amount in lumpsum failing which he became liable to pay increased rate of interest as mentioned above. It was pleaded that out of the sum of Rs. 1, 02,726/-, the plaintiff was able to recover Rs. 11,242/1-- leaving the balance outstanding as Rs. 91,484//- and a sum of Rs. 68,256.73 has become due as interest. As the claim of the plaintiff is based on written agreements, the suit is brought under Order 37 C.P.C. for recovery of the amount with pendente lite interest and future interest @ 19.50% per annum with costs.
The counsel for defendants 2 & 3 has urged that dismissal of defendant No. I front the service has not become final and thus, plaintiff has not become entitled to recover the loan in lump sum. There is no merit in this contention. Admittedly, services of defendant No. I stand terminated by plaintiff company. I am informed that he had filed a writ petition which had been dismissed and it is stated by learned counsel for defendants that an SLP has been filed in the Hon''ble Supreme Court. But admittedly, no stay been obtained with regard to the order of removal from service of defendant No. 1, hence it has to be held that on the defendant No. I ceasing to be employee of plaintiff, the whole of the balance loan amount had become recoverable in lump sum and the plea taken by the defendants 2 & 3 in this respect is totally frivolous and baseless.
Another plea raised was that defendants 2 & 3 are not liable for payment of interest amount. The same is also a bogus plea as a perusal of the surety bonds make it clear that defendants 2 & 3 are jointly and severally liable for payment of the amount which has to become recoverable from defendant No. 1. Admittedly, the Agreement contains the stipulation to pay interest. So, defendants 2 & 3 are also liable to pay the whole of the amount which has become recoverable including the interest in lump sum.
Counsel for the defendants 2 & 3 has urged that even if defendant No. I has become liable to pay the whole of the amount in lump sum, the plaintiff has no right to recover the same from defendants 2 & 3 in lump sum and plaintiff can recover the same from defendants 2 & 3 only by way of Installments and that too after plaintiff fails to recover the amount from defendant No. 1. Again this plea is a sham and bogus one because the terms of the agreement and the Surety Bond executed clearly stipulate the joint and several liability of all the three defendants as soon as the loan amount was to become recoverable on defendant No.1 ceasing to be in service of plaintiff. So, I find that no triable issues arise from the pleas urged before me seeking leave to defend on behalf of defendants 2 & 3. No other plea has been urged. I dismiss the I.A. 2672/90.
All the 1. As. stand disposed of. S. No. 933 / 89
As the leave to defend application of defendants 2 & 3 has been dismissed and no leave to defend application has been filed by defendant No. 1, hence, admitting the facts stated in the plaint as correct, I decree the suit for recovery of Rs. 1,59,740.73 paise with costs and grant interest @ 19.50% per annum from the date of suit till realisation in favor of the plaintiff and against the defendants.
The suit stands disposed of.
Order accordingly.