NEUTRAL CITATION
C/SCA/533/2018 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 533 of 2018
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MINT INC & 2 other(s)
Versus
YASH PANKAJ GANDHI
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Appearance:
ROHAN A SHAH(7497) for the Petitioner(s) No. 1,2,3
RUSHABH H SHAH(7594) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/09/2023
ORAL ORDER
1. Heard learned advocate Mr. Rushabh H. Shah for the petitioners.
2. By way of this petition preferred under Article 227 of the Constitution of India, the petitioners challenge the order passed below Exh.27 (Annexure P-3) in Special Summary Suit No.66 of 2015, whereby while deciding the leave to defend application, the learned court below ordered to give the bank guarantee of Rs. 15 Lakhs for preferring the defence.
3. The brief facts of the case are that the respondent herein filed Special Summary Suit No.66 of 2015 under the provisions of Order 37 of the C.P.C. seeking recovery of Rs.15 Lakhs along with 18 % interest on the ground that the cheuqe No.662852 issued by the present Page 1 of 5 Downloaded on : Sat Sep 16 15:56:17 IST 2023 NEUTRAL CITATION C/SCA/533/2018 ORDER DATED: 04/09/2023 undefined petitioner in favor of the original plaintiff returned unpaid and as such, the liquidate damage is not paid. The dispute arises from the agreement between the parties for running the Subway store. It is said that the original plaintiff was willing to sale the Subway store to the present petitioners and the cheque of Rs.15 Lakhs was issued towards the security in addition to the entire sale consideration for purchase of the Subway store, the cheque, which was given towards the security, was returned unpaid and has therefore, given cause of action to the plaintiff for filing the Civil Suit under Order 37 of the C.P.C. After service of the summons, the plaintiff herein filed the summons for judgment, pursuant to which, the present petitioners have filed leave to defend application at Exh.27. The leave to defend application was decided. The petitioners, who were defendants in the suit, permitted to defend the suit on condition that they shall deposit bank guarantee of Rs.15 Lakhs. Being aggrieved by the said decision, the petitioners have approached this Court by way of present petition.
4. Though served, none remained present for the original plaintiff, who is arrayed as the respondent herein.
5. Learned advocate Mr. Shah appearing for the petitioners referring to the judgment of Chlochem Limited vs. Lifeline Industries Page 2 of 5 Downloaded on : Sat Sep 16 15:56:17 IST 2023 NEUTRAL CITATION C/SCA/533/2018 ORDER DATED: 04/09/2023 undefined Limited reported in 2015 (1) GLR 378, more particularly, Para Nos.23 to 25, he would submit that if plaintiff in absence of contract for interest, has prayed for the interest in relief clause that part will itself bring the suit out of the summary nature. He would further submit that in present case, the plaintiff has asked for the relief of the interest without having any contract between the parties and the said issue itself is triable issue, and therefore, in view of that the unconditional leave was required to be granted.
6. Having heard learned advocate Mr. Shah appearing for the petitioner, the relevant observations made in Para Nos.23 to 25 in the judgment of Chlochem Limited (supra) reads as under:
23. A perusal of Order 37, Rule 1, sub-rule 2 of the Code makes it clear that the dispute does not fall in any of the sub- clauses of sub-rule 2, in view of the claim of interest made by the petitioner. This alone raises a triable issue. Therefore, in the view of this Court, unconditional leave to defend has rightly been granted by the City Civil Court.
24. In Ratilal B. Shah And Co. v. Pari Prafulchandra Kantilal (supra), the case before the Court was regarding a dispute to the amount claimed in the account prepared by the plaintiff. The defendant therein challenged the correctness and accuracy of the account. As the case of the defendant was that the account was inaccurate, this Court held that the Page 3 of 5 Downloaded on : Sat Sep 16 15:56:17 IST 2023 NEUTRAL CITATION C/SCA/533/2018 ORDER DATED: 04/09/2023 undefined Trial Court was not justified in granting conditional leave to defend. The relevant extract of the judgment is reproduced hereinbelow:
4. In view of the fact that the defendants case is that this was an "account stated" and that the plaintiff is liable to render true and correct account, it would be premature to hold any specific amount being due from the defendants to the plaintiff. In the circumstances of the case, the learned trial Judge was not justified in imposing a condition that the defendants should deposit a sum of Rs. 20,901/- and allow the defendants to defend on that conditions only. In this matter, the defendants are entitled to an unconditional leave to defend because, at this stage, it is not possible to say as to what amount would be found to be due and payable by the defendants to the plaintiff. The defendants are, however, directed to file their written statement within four weeks from the day on which this writ is received by the lower Court and the trial Court is directed to take up this case immediately for hearing and dispose of the suit not later than 31st March 1983. Writ to be sent to the lower Court forthwith.
25. The present is also a case where the account prepared by the petitioner has been seriously disputed by the respondent, therefore, the principles of law enunciated by the Court in the above-quoted judgment would apply squarely to the present case.
7. There is no material on record, which indicates that a contract has been executed between the parties regarding claim of the Page 4 of 5 Downloaded on : Sat Sep 16 15:56:17 IST 2023 NEUTRAL CITATION C/SCA/533/2018 ORDER DATED: 04/09/2023 undefined interest. Bare perusal of the pleading (Annexure P-1), it is also silent about the existence of contract regarding the interest. In absence of the contract between the parties regarding charging of interest on the principle amount as held hereinabove, it is triable issue. The Court below, therefore, fell into the patent illegality in passing the conditional order for permitting the leave to defend.
8. For the foregoing reasons, the present petition succeeds. The order passed below Exh.27, which is challenged herein is hereby quashed and set aside. The petitioners are permitted to defend the suit unconditionally. The petitioners shall file their written statements within a period of 30 days from today. Interim relief stands discontinued. Proceedings of summary suit shall proceed accordingly.
(J. C. DOSHI,J) SUYASH SRIVASTAVA Page 5 of 5 Downloaded on : Sat Sep 16 15:56:17 IST 2023