2013(1) ALL MR 199
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. SAVANT, J.

M/S. Prahaar Enterprises Vs.M/S. Fortune Marketing & Ors.

Writ Petition No.2227 of 2011

17th July, 2012

Petitioner Counsel: Mr. S.R. Ganbavale,Mr. Indrajeet Joshi
Respondent Counsel: Mr. Ketan Joshi,Mr. S.A. Sawant

Civil P.C. (1908), O.38 R.2 - Furnishing of security - Issuance of warrant against proprietor of the petitioner firm for securing her presence - Is unwarranted when she had all along actively participated except on one or two stray occasions - Warrant is liable to be quashed. (Para 8)

JUDGMENT

-Rule, with the consent of the parties made returnable forthwith and heard.

2. The above Petition takes exception to the three orders, the first of which is the order dated 1/2/2011 by which order the trial Court i.e. Joint Civil Judge, Senior Division, Pune issued warrant under Order 38 Rule 2 of the Code of Civil Procedure against the Defendants which included the Petitioner, above named to furnish security for their appearance; by the second order dated 24/2/2011 the said order dated 1/2/2011 was clarified to the extent that the Defendants were granted liberty to deposit an amount of Rs.One lakh each in the trial Court or they were at liberty to file fixed deposit receipts of Rs.One lakh each in the name of the Court towards compliance of the order below Exhibit 23; by the third order dated 30/3/2012, in view of noncompliance of the said order dated 24/2/2011 warrant of arrest against Defendant Nos.1, 4, 5, 6, 8, 9, 10 and 13 under Order 38 Rule 4 of the Code of Civil Procedure came to be issued.

3. It is not necessary to burden this order with unnecessary facts. The facts which are relevant for the adjudication of the above Petition can be in brief stated thus :

The suit in question i.e. Special Civil Suit No.2064 of 2009 came to be filed by the Respondents herein for the recovery of the sum of Rs.8,54,475.50 ps from the Defendants along with future interest thereon at 21% p.a. from August 2008 till the realization of the same. The present Petitioner is the original Defendant No.13 to the said suit. The Respondent No.1 herein is the original Plaintiff. The present Petitioner was appointed as a Super Stockist by the Respondent No.1 herein. The other Defendants are purportedly the agents of the Respondent No.1 herein.

4. In so far as the present Petitioner is concerned, it is a proprietary concern and it is relevant to note that the proprietor has filed a written statement in the said suit. The cause of action for moving the said application under Order 38 Rule 1 of the Code of Civil Procedure was the apprehension of the Plaintiff that the Defendants in the suit are about to abscond or leave the local limits of the jurisdiction of the concerned court with ulterior motive to deny the Respondent No.1/Plaintiff the fruits of the decree if one is ultimately passed in its favour. Further in so far as the present Petitioner is concerned, the demand notice which evinced no response from the other Defendants was replied to by the Petitioner on 24/8/2009. The Petitioner in fact claimed the amount of Rs.4,57,670.21 ps from the Respondent No.1. In the said reply. It was the case of the Petitioner that it has nothing to do with the claim of the Respondent No.1 against the other Defendants. In so far as closure of its business was concerned, it was contended by the Petitioner that it was forced to close down the business because of the wrong and malafide practices of the rest of the Defendants.

5. he trial Court accepting the case of the Respondent No.1 herein that there was likelihood of the Defendants absconding as they had also not appeared on the various dates on which the suit in question appeared on board passed the first order dated 1/2/2011 directing issuance of warrant against the Defendants under Order 38 Rule 2 of the Code of Civil Procedure. However, in so far as present Petitioner is concerned, except on one or two stray occasions when the proprietor of the Petitioner was not present, the Petitioner has all along been represented and has been contesting the suit in question. The subsequent two orders dated 24/2/2011 and 30/3/2012 are consequential to the first order dated 1/2/2011 by which orders the powers have been invoked by the Court under Order 38 Rule 2 of the Code of Civil Procedure. The question which is therefore posed is as to whether in the facts and circumstances of the present case whether such powers could have been invoked qua the present Petitioner.

6. It is submitted by the learned counsel for the Petitioner Shri Ganbavale that it is not a case where the present Petitioner who is the Defendant No.13 has kept away from the proceedings, in fact the Defendant No.13 has participated in the proceedings all along and has also filed its written statement. The learned counsel would contend that the powers under Order 38 Rule 2 cannot be invoked in respect of the apprehension as expressed by the learned counsel for the Respondent No.1.

7. Per contra, the only submission which was sought to be advanced by the learned counsel appearing for the Respondent No.1 is that the conduct of the Petitioner in not prosecuting the Review Petition which was filed against the Order dated 1/2/2011 and thereafter remaining absent leads to an apprehension that the Petitioner may try to frustrate the decree that may be eventually passed in favour of the Respondent No.1. The learned counsel would contend that the suit being a suit for recovery of amount of Rs. 8,54,475.50 ps, if ultimately the Defendants liquidate their properties, there would be nothing left for the Respondent No.1 against which the amount can be recovered from the Defendants.

8. Having heard the learned counsel for the parties at some length and having bestowed my anxious consideration to the rival contentions, in my view, the order impugned directing issuance of warrant against the proprietor of the Petitioner for securing her presence is unjustified and unwarranted. As indicated above, the Petitioner has in fact filed its written statement through its proprietor, the Petitioner has also participated in the proceedings all along and except on one or two stray occasions when the proprietor of the Petitioner had not remained present, the Petitioner has all along actively participated in the proceedings. In the said fact situation, the issuance of warrant to secure the presence of a party to the suit is totally unwarranted and unjustified. In so far as apprehension of the Respondent No.1 that the Defendants would liquidate their properties and thereby leave nothing for the Respondent No.1 to recover the amount if the suit is ultimately decreed in its favour, in my view, cannot be a ground to invoke the powers under Order 38 Rule 1 of the Code of Civil Procedure. The said apprehension may be a ground for an application under another Rule of the said Order, but cannot be a ground for invocation of the powers under Order 38 Rule 2 of the Code of Civil Procedure in the matter of furnishing security. The fact that the Petitioner did not pursue the application for review of the said order cannot be a circumstance which would indicate or which would lead to an inference being drawn that the Petitioner would abscond from the proceedings. At least at this stage there is no warrant to draw such an inference.

9. In that view of the matter, the impugned orders dated 1/2/2011, 24/2/2011 and 30/3/2012 are required to be quashed and set aside and are accordingly quashed and set aside. It is made clear that the said orders are quashed and set aside only qua the present Petitioner i.e. the original Defendant No.13. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.

Petition allowed.