Reynaud Decor Place vs Kitply Industries Limited

Sat Pal, J. (Oral)

This petition has been preferred against the order dated 27th March, 1997, passed by the Sub Judge Ist Class, Chandigarh. By this order, the learned Sub Judge has allowed the application filed by the plaintiff under Order 38 Rule 5, C.P.C. and has directed the defendants to furnish bank guarantee in the sum of Rs. 6,85,000/ only to the Court.

Mr. Jain, learned counsel appearing on behalf of the petitioner submits that in terms of the averments made in paras 4 and 6 of the plaint, the goods in dispute were supplied to the defendants by M/s Bhiwani Ply Woods Pvt. Ltd. and there was no contract between the plaintiff and the defendants with regard to supply of goods in question. In support of this submission, he placed reliance on a judgment of this Court in Onkar Mittal v. State Bank of Patiala, 1992(1) R.R.R. 45 : 1991(2) PLR 338. He further submits that during the pendency of the case, the defendants/petitioners have already made a payment of Rs. 2 lacs against the alleged amount of Rs. 6,84,774.48.

Mr. Tribhuvan Singla, learned counsel appearing on behalf of the respondents submits that in fact the goods were supplied by the respondent/plaintiff and as mentioned in para 2 of the impugned order, against the value of the goods, the defendants/petitioners had issued three cheques in favour of the plaintiff. He further stated that the defendants had also paid Rs. 1,20,000/ in cash to the respondents and the said amount has also been reflected in the plaint. The learned counsel also submits that M/s. Bhiwani Plywood Pvt. Ltd. is the agent and the plaintiff is the principal and the contract is between the principal and the defendants which is prima facie proved by three cheques issued in their favour.

After hearing the learned counsel for the parties and having perused the impugned order I find that the supply of the material has been admitted by the defendants. It is further clear that against the said amount of Rs. 6,84,774.48. a sum of Rs. 2 lacs has already been paid by the defendants to the agent of the plaintiff. The balance amount payable by the defendants, as per the case of the plaintiff, now comes to Rs. 4,84,774,48. Since the supply of the goods has been admitted and keeping in view the facts and circumstances of the case, the impugned order dated 27th March, 1997 is modified to the extent that the defendants shall furnish bank guarantee in the sum of Rs. 2 lacs and for the remaining amount they shall furnish security of immovable property to the satisfaction of the learned trial court. I direct the petitioner to furnish bank guarantee and security as indicated herein above within four weeks. The decision of this court in Onkar Mittal is not applicable to the facts of the present case as in the present case as stated hereinabove, the defendants had issued cheques in favour of the plaintiff.

With the above modification of the impugned order as indicated hereinabove, the petition stands disposed of. I further make it clear that the observations made hereinabove shall not have any bearing on the merits of the case.