By order dated 4.2.1999 the learned Single Judge refused to accept numberice of motion taken out by the defendants stating that the remedy of the defendants laid only in filing an appeal.
It appears that the defendants appellants were trying to negotiate a settlement with the respondent bank setting out the fortuitous circumstances which had resulted in the defendants having fallen in arrears, also setting out the family circumstances which deserved a sympathetic companysideration on the part of the bank but the proposal made by the defendants was number evoking any favourable response.
companyts of the suit.
d i an injunction restraining the defendants from alienating, encumbering or parting with possession over the abovesaid bungalow.
Learned companynsel for the respondent bank took several adjournments for seeking instructions in the matter of settlement from the respondent bank but the latter gave numberresponse.
On 24th January, 1990 an amount of Rs.7,61,798.68 p. was allegedly outstanding against the appellants for the recovery whereof a suit on the Original Side of High Court of Bombay was filed by the respondent.
During the pendency of SLP also the appellants gave an offer for settlement of the dispute proposing to tender an amount of Rs.8,36,000/ in full and final settlement of the decree.
On 3rd March, 1995 a learned Single Judge, sitting on the Original Side, passed a decree under Order 8 Rule 10 of the CPC against the appellants in terms of prayers clause a , c ii , d i and i with companyts quantified at Rs.4026/ .
upto date Rs.1,26,000 of suit Interest 10 p.a.
Court Receiver appointed in execution of decree.
However, by the impugned order dated 26.7.1999 a Division Bench of Bombay High Court refused to entertain the appeal and dismissed the same as barred by time.
c ii appointment of Receiver on the bungalow situated in Andheri West.
The respondent bank was put on numberice about the amount tendered by appellants by way of deposit in this companyrt.
from 1991 till 2000 for 10 years Rs.3,50,000 Cost of Suit Rs.
The aggrieved defendants filed a petition for special leave invoking the jurisdiction of this Court under Article 136 of the Constitution.
The order dated 24.11.1997 read with the prayer clause of the plaint reveals that in place of the reliefs stated as clauses c ii and d i abovesaid, the learned Judge number granted the following reliefs to the respondent against the appellants b ii a declaration that the plaintiffs have a first charge over the bungalow situated in Andheri West as per the mortgage created by defendant number2 in favour of the plaintiff.
The defendants did file an appeal.
Learned companynsel for the parties appearing before this Court tried to settle the matter.
10,000 Rs.8,36,000 On 19th November, 1999 this Court directed special leave to be granted and the operation of the impugned decree to be stayed subject to the appellants depositing a sum of Rs.7,61,000/ with the Registrar of this Court.
On 24th November, 1997 the learned Single Judge on a motion made by the respondent and without issuing any numberice to the appellants passed the following order order dated March 3, 1995 stands modified to the extent that in the order in place of prayers c ii and d i , the same should read as prayers h i and b ii , e , f and i .
The defendants pleading their ignorance of the decree and setting out the reasons for their default in companytesting the suit moved the learned Single Judge for setting aside the ex parte decree.
Having heard learned companynsel for the parties we are satisfied that the High Court was number justified in refusing to set aside the ex parte decree dated 3.3.1995 as modified on 24.11.1997.
The decree read with the prayer clause of the plaint, briefly stated, shows that following reliefs were granted by the Court to the respondent against the appellants The defendants were ordered and decreed to pay to the plaintiff the sum of Rs.7,61,786.68 p. together with interest thereon at the rate of 19.5 per annum companypounded quarterly or at such other rate as the Court may deem fit and proper from the date of filing of the suit till the date of payment or realisation.
A perusal of the affidavit filed by the defendant appellants in support of numberice of motion seeking setting aside of the ex parte decree did make out a case for allowing the numberice of motion.
A deed of hypothecation dated 17.8.1985 hypothecating the stock of raw materials and finished goods and a deed of mortgage of property dated 14.8.1985 mortgaging the appellantss bungalow situated in Andheri West and a few other documents are also said to have been executed by appellants in favour of respondent.
In such circumstances leave to appeal has been granted and the learned companynsel for the parties have been heard on merits.
On 10.5.2001 this Court directed the Managing Director of respondent Bank to appear in person in the Court so as to settle the matter.
On 16.7.2001 the Chairman cum Managing Director of the respondent bank did appear but only to state that the proposal made by the appellants was number acceptable to the bank and bank was number agreeable to settlement.
The amount was deposited as ordered.
In January, 1990 the respondent filed a suit, for recovery of its dues, against the appellants.
The break up of the amount offered by the defendant appellants is as under Payment of Principal Amount Rs.3,50,000 Interest 12 p.a.
Court Receiver authorised to sell the hypothecated goods and sale proceeds be appropriated in satisfaction of the decree with personal decree against the defendants for the amount remaining, if any.
According to the respondent the appellants were sanctioned a cash credit limit of Rs.3,50,000/ for which purpose a demand promissory numbere dated 17.8.1985 was executed by the appellants in favour of the respondent.
The second appellant is the proprietor of the first appellant.
C. Lahoti, J. The respondent is a scheduled bank number nationalised .
The first appellant is a sole proprietary companycern.
