Vivekananda Printers and Others vs State Bank of India, Bazarghat Branch

Radhakrishna Rao, J.—This revision petition is filed by the petitioners defendants challenging the order dated 22nd November, 1991 passed by the II Addl. Judge, City Civil Court, Hyderabad, in I.A.No. 758 of 1991 in O.S. 472 of 1991 on his file directing the defendant to furnish security by 11-12-1991.

The respondent-Bank filed a suit O.S.474 of 1991 against the petitioners-defendants for recovery of a sum of Rs. 5,66,896-80. Along with the suit, the Bank has filed a petition I.A.No. 758 of 1991 under Order 38 Rule 5 C.P.C., seeking attachment before judgment of the stocks and machinery belonging to the first petitioner-firm, which were hypothecated and pledged to the Bank as Security for the amounts advanced to the first petitioner.

The learned II Additional Judge passed the following Order:-

"Heard. The respondent has no objection to furnish security and also submitted that the machinery in question cannot be sold or removed from the premises in view of the High Court orders restraining the respondent from removing the machinery from the premises. In the circumstances, the respondent is directed to furnish security by 11-12-1991. Call on 12-12-1991."

Challenging the above said order, the defendants have filed the present revision contending that the court below grievously erred in stating that the respondents had no objection to giving security, that an elaborate counter had been filed, that the mischief played in regard to service of notice was pointed out and arguments were addressed opposing the application.

In other words, the contention advanced on behalf of the defendants is that even though an elaborate counter is filed, without consideraing the contentions, the impugned order has been passed. In support of the contentions raised by the defendants in their counter, they filed the affidavit of one of the advocates on record in the lower court, with a petition to modify the order dated 22-11-1991.

The learned counsel appearing on behalf of the respondent-Bank has brought to my notice that petitioners 1 and 2 have filed their counter on 1-8-1991 and took time for counters of other petitioners, with an intention of protracting the matter, that the respondent-Bank had filed a memo on 17-9-1991 seeking an order for making the conditional order of attachment absolute in view of the fact that the petitioners herein had failed to furnish security even after a lapse of three months of the interim order, that ultimately the petitioners 3 to 5 filed a memo adopting the counter filed by petitioners 1 and 2 and the matter was finally heard on 22-11-1991 and when the court opined that it was inclined to make the order of attachment absolute, the counsel for the petitioners herein volunteered to furnish security provided time was given to him, that thereupon the lower court recorded the representation made by the learned counsel for the petitioners that the petitioners-defendants have no objection for furnishing security and therefore adjourned the matter to 11-12-1991 for furnishing security, that on 11-12-1991 they sought extension of time for furnishing security and the matter was adjourned to 30-1-1992, that on 30-1-1992 as the Presiding Officer was on leave, the matter was adjourned to 12-2-1992 and that at this juncture the petitioners filed a petition under Sections 151 and 152 C.P.C. seeking amendment of the order passed by the trial court on 22-11-1991 and at that stage, the petitioners-defendants have filed the present revision.

From the above sequence of events that took place from time to time, it is clear that it is only on the representation made by the learned counsel for the petitioners-defendants the impugned order came to be passed. They are aware of the said order and they have also sought extension of time for furnishing security. When the matter stood posted to 12-2-1992 for funishing security, they filed another application u/s 151 and 152 C.P.C. for amendment of the order. Even though an elaborate counter has been filed, as the learned counsel for the defendants has volunteered to furnish security if some time is granted, there is no point in arguing now that the counter of the defendants has not been considered . It is well settled proposition that the entries made on the docket of the proceedings by the Judicial Officer will prevail over the affidavit filed by the party at a belated stage. If the observation made by the learned judge is erroneous, they would have filed the petition for amendment immediately. But on the other hand they took time for furnishing security twice. This falsifies the present contention of the defendants. Another argument raised by the learned counsel for the petitioners is that the High Court has directed the petitioners herein not to remove the machinery from the premises by its order dated 25-1-1990 in W.P.M.P.No. 23720/89. Merely because this Court has made the above order, that does not mean that the case of the petitioners herein is made out.

On an overall assessment of the respective contentions advanced in this C.R.P. and perusing the material available on record, I hold that there are no merits in the C.R.P. The Order passed by the learned Additional Judge, City Civil Court does not call for interference. However, in the circumstances, two months'' time can be granted for furnishing security.

The C.R.P. is dismissed. Two months'' time is granted for furnishing security. No costs.