Gujarat High Court
Satnam Distributor vs Quebec Petroleum Resources Limited on 29 January, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CA/5191/2024 ORDER DATED: 29/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5191 of
2024
In F/FIRST APPEAL NO. 29192 of 2024
==========================================================
SATNAM DISTRIBUTOR & ORS.
Versus
QUEBEC PETROLEUM RESOURCES LIMITED
==========================================================
Appearance:
MR AYAAN PATEL for SINGHI & CO(2725) for the Applicants
MR HASIT DAVE(1321) for the Respondent
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 29/01/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Captioned application, is with a prayer to condone the delay of 183 days caused in preferring the captioned First Appeal, whereby the judgment passed by the learned Additional Chief Judicial Magistrate, Padra is under challenge.
2. Mr.Ayaan Patel learned advocate for Singhi & Co. for the applicants, submitted that the summons were not served upon the applicants and hence, the applicants could not enter appearance and the suit came to be decreed ex-parte. Subsequent thereto, execution proceedings were initiated against the applicants before the Court in Lucknow. It is upon issuance of the summons on 3.8.2024 that applicants became aware about the proceedings and passing of the judgment somewhere in the month of September, 2024. Immediately thereafter, certified copy was applied which was made available on 23.9.2024 and was collected on 25.9.2024. All the steps were taken and the appeal came to be filed and in the process, there occurred a delay of 183 days.
Page 1 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined 2.1 It is submitted that so far as the service of summons
upon the applicants is concerned, it is no service as required under the provisions of O.V Rule 17 of the Code of Civil Procedure, 1908 (herein-after referred to as 'the Code') inasmuch as, Rule 17 includes various steps to be taken, namely, (i) affixation of notice on the conspicuous part of the property in which the defendant ordinarily resides; (ii) endorsement about the affixation in the report of the bailiff, and (iii) name and address of the person by whom the property was identified and in whose presence the copy of the notice was affixed. It is submitted that none of the steps were taken and straightaway, the report has been filed about service of the summons and it cannot be construed to be a service of summons in consonance with the provisions of the Code.
2.2 Reliance is placed on the judgment in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh & Others, reported in (2002) 5 SCC 377 wherein, it has been held and observed that the date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the Court to satisfy itself on the service of summons. Any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex-parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of him. Reliance is also placed on the judgment in the case of Neerja Realtors Private Limited Vs. Janglu (Dead) Through Legal Representative, Page 2 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined reported in (2018) 2 SCC 649; Reliance is also placed on the judgment in the case of Madan S/O Mohan Gupta Vs. Ramavati Ramesh Chauvan, reported in 2019 SCC Online Bom 1470 wherein it has been held and observed that if the party refuses to sign the acknowledgment, it is incumbent upon the bailiff to affix the copy of summons / notice to the outer door or conspicuous part of house of the defendant inasmuch as, the provisions of O.V Rule 17 are mandatory. It is, therefore, submitted that considering the language and the scope of O.V Rule 17, if the service of summons, is not in tune with the said provision, it is no service in the eye of law.
2.3 It is submitted that the summons were issued and as per the report of the bailiff, the applicants have refused to accept the service. But, it is a case of the applicants that the applicants never received any summons. Assuming without admitting that the summons were served but, the procedure as contained in O.V Rule 17 has not been followed and in absence thereof, the service of summons cannot be said to be a service in the eye of law as per the settled principle. It is further submitted that it is the duty cast upon the bailiff, to affix summons on the door or on the conspicuous part of the residence of the recipient which exercise, has not been undertaken in case on hand and hence, on all the counts, it cannot be said that the summons was served upon the applicants. It is submitted that the applicants were unaware about the proceedings and the judgment having been passed. It is only for the first time when the summons was issued in the execution proceedings that the applicants came to know about the judgment and immediately thereafter, the steps Page 3 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined were taken and in the process, there occurred a delay of 183 days, which deserves to be condoned.
3. On the other hand, Mr.Hasit Dave learned advocate appearing for the respondent, submitted that the provisions of O.V Rule 17 would not be applicable to the suit filed under O.XXXVII Rule 1 of the Code. Besides, the appeal, would also not be maintainable. It is submitted that the provisions of O.XXXVII is a self-contained Code, providing for mode and manner of service of notice and more particularly, sub-rule-2 of Rule-2 of O.XXXVII. It is submitted that besides, rule-2 of Rule-3 speaks about the deemed service of notice, if it is left at the address given by the person of such service. While inviting the attention of this Court to the bailiff's report, it is submitted that the report records that the applicants - original defendants, refused to accept the summons and when there is a refusal, the applicants, cannot take shelter of non- issuance of summons. The service of summons was properly done and hence, it cannot be said that the applicants, were not served.
4. Heard learned advocates appearing for the respective parties.
5. In the captioned application, the applicants, have prayed for condoning the delay of 183 days caused in preferring the captioned First Appeal. The stand taken by the applicants, is that somewhere in the year 2024, execution proceedings came to be initiated before the Court in Lucknow wherein, the summons were issued which were received by the applicants on 3.8.2024. When, the applicants, became aware about the Page 4 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined judgment. Immediately thereafter on 5.9.2024, the applicants applied for a certified copy of the record and proceedings before the trial court which was ready on 23.9.2024 and the papers, were thereafter collected on 25.9.2024. After considering the judgment, steps were taken, namely, gathering information, preparing and drafting of the application and appeal so as to approach this Court and it is thereafter that the appeal came to be filed. In the process, there occurred a delay of 183 days.
6. It is by-now well settled that a person would not be benefited by approaching the court at a belated stage. On the other hand, if the delay is condoned at the most, the matter, would be decided on merits. In the present case, submissions have been made including about the service of summons; viz., refusal of summons and/or acceptance of summons, touching the merits and therefore, at this stage, without entering into the said aspect, accepting the explanation offered, this Court, is of the opinion that the delay deserves to be condoned and is hereby condoned. Civil Application succeeds and is accordingly, allowed. Rule is made absolute with no order as to costs.
7. This Court, on 09.12.2024, has passed a detailed order calling for the explanation when, in para-11, the interim relief, was granted and which reads, thus :
"11. Pertinently, at the stage of Civil Application for condonation of delay, this Court would not have stayed the judgment and decree; however, considering the manner in which the copies of judgment and decree dated 28.12.2023; 09.01.2024, so also decree dated 09.01.2024 are made available, same are stayed till the next date of hearing."Page 5 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025
NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined
8. Mr.Hasit Dave, learned advocate, has requested that let the appeal be listed in the week commencing from 10.02.2025.
9. The Registry is directed to list the First Appeal and till then, the stay granted earlier vide order dated 09.12.2024 shall continue.
10. Pertinently, the issue in question, is connected to the transaction concerning petroleum product, whereas in one of the certified copy of the judgments provided and stated to have been pronounced on 28.12.2023, the facts narrated deal with a Bank's transaction. The plaintiff is stated to be the Bank and the respondent stated to be the borrower. Another copy of the judgment dated 28.12.2023 records the correct facts viz. the transaction between the plaintiff and the respondent-defendant pertaining to the petroleum product. One another copy of judgment is dated 09.01.2024 recording the facts correctly. Fact remains that in one of the certified copies of the very same impugned judgment, there is error crept in. Hence, before parting, we would like to place on record our concern about the nature of certified copies provided
11. During the course of hearing, this Court had come across the certified copy of the impugned judgment, Exh.60 which bears the date of '28.12.2023' indicating the judgment to have pronounced in the open Court on 28.12.2023. However, on the first page of a certified copy of the judgment dated 28.12.2023, carries the date of '5.1.2024'. Paragraph Nos.1 and 4, contained incorrect factual narratives. All the Page 6 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined pages of the certified copy of the judgment, bear the initials of learned Judge. This Court came across copy of another impunged judgment again, Exh.60 and which also carries the date of '28.12.2023' and was pronounced in the open Court on that date, with facts recoreded correctly. However, the first page, bears the date of '05.01.2024'. Therefore, there are two copies available; both stated to have been pronounced in the open court on 28.12.2023 with the date of '05.01.2024' on the first page and passed in Regular Summary Suit No.1 of 2021 (Exh.60). Moreover, this Court came across copy of one another order dated 09.01.2024 passed in Regular Summary Suit No.1 of 2021. In the copy of this judgment, the facts narrated are correct and connected to the issue in question viz. the transaction pertaining to the petroleum product.
12. It appears that somewhere in the month of March, 2024, application dated 06.03.2024 came to be filed - Exh.62, seeking correction in the description of the names of defendant Nos.2 and 3 whereby, the Court concerned, has passed the order and allowed the correction in the said description. This correction, can be noticed in the judgment stated to have been passed on 28.12.2023, rather in both the copies of the judgment stated to have been passed and pronounced in open Court on 28.12.2023 but, certainly not in the copy of the judgment dated 09.01.2024.
13. Notably, the applicants applied for the certified copy on 05.09.2024, which was made available on 23.09.2024 which was collected on 25.09.2024. It is pursuant to this application the certified copy which was received was an incorrect copy.
Page 7 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined
Besides, the copy was also taken from the website with the date of passing the judgment as 09.01.2024. Similarly, the respondent has also applied for certified copy, not once but thrice. The first application was submitted on 19.02.2024 and the certified copy which was received was on 27.02.2024 and the copy received is with the date '09.01.2024' with no correction in the description in the cause-title. Again, certified copy was applied on 07.03.2024 and the copy was provided on 12.03.2024. The copy received, was with an incorrect, recording in paras-1 and 4. Third time, the certified copy was applied on 05.11.2024. Copy was ready for delivery on 18.11.2024 and delivered on 20.11.2024. The judgment is dated 28.12.2023, stated to have been pronounced in the open Court with date of '05.01.2024'. The facts were again incorrect.
14. This Court, had passed order dated 09.12.2024 calling for the remarks which were received from the Court concerned, followed by another order dated 24.12.2024. Pursuant to that order, the learned Principal District Judge has given his report and the aforesaid communication has been addressed. The order dated 24.12.2024 passed by this Court, is reproduced hereinbelow:-
"This Court, has on 09.12.2024 passed an order whereby, explanation was required from the concerned Court. The reason for seeking explanation, was discrepancy in paragraph 4 of the certified copy of the judgment and decree dated 28.12.2023. This Court, had noticed that the contents of paragraph 4 of the certified copy, was unconnected and unrelated to the issue in question. To be precise, same was dealing with the factual aspect of loan having been obtained from the bank and failing to make payment of installments.
2. This necessitated calling for the remarks from the Page 8 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined concerned learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Padra. The explanation has been put forward vide two letters, bearing nos.357 of 2024 and 358 of 2024, both dated 17.12.2024. It has been tried to explain that after the pronouncement of the judgment on 09.01.2024, the concerned Stenographer has uploaded the judgment on the website. It is sought to be explained that there is no anomaly in the signed copy of the said judgment with the one which is uploaded. It has been further sought to be explained that on 06.03.2024, i.e. after about two months of the disposal of the matter, applicant, Exh.62, was filed for correction in the name of the defendant no.2. Accordingly, an order dated 06.03.2024 was passed, which is at Annexure-C to the explanation. In 5 th and 6th bullet points of letter bearing no.357 of 2024 dated 17.12.2024, the explanation offered is thus:-
In view of the order passed below Exh.62, new judgment (Exh.60) was prepared with necessary corrections in the names of the defendants no.2 and 3 as "Dharmendrasingh Swarnsingh Chadda", and the same was uploaded.
The necessary corrections in the judgment (Exh.60), were only meant to be in the name, i.e. the Cause Title. However, the concerned Stenographer has carried out the same with certain additional corrections of his own. Naturally, when signing the said judgment, I only paid attention ot the Cause Title, and ignored the body of the judgment, as no corrections were ordered in the body of the judgment under Exh.62. Then, he uploaded the corrected copy of the judgment on the website of the eCourt. Photocopy of the corrected judgment (which was uploaded), is annexed hereto as Annexure- E"
In the penultimate paragraph, it has been stated thus:-
"The aforesaid are my explanations as to why and how the certified copy provided of the impugned judgment dated 28/12/2023 as well as the copy of the judgment and decree, both dated 09/01/2024 passed in Regular Summary Suit no.1 of 2021, contain different paragraphs. I would further beg to submit that as noted herein-above, the concerned Gujarati Stenographer (Mr.IG Shaikh) has expired on 12/11/2024 (on duly) because of a cardiac arrest, and therefore, it is not possible to seek his explanations or remarks."
3. Similarly in the letter bearing no.358 of 2024 dated 17.12.2024, the explanation offered is on the same line. It is stated that while signing the judgment, attention was paid only to the cause-title.
Page 9 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined
4. Further explanation is offered vide letter bearing no.361 of 2024 dated 20.12.2024 and it starts with reproduction of the paragraphs of the order passed by this Court and the factum of explanation offered vide letter dated 17.12.2024. In first two unnumbered paragraphs facts are stated. In third unnumbered paragraph, reference is made of Stenographer uploading the judgment on the website of eCourts. It has been clarified that there is no anomaly with the copy of the signed judgment with one that was uploaded. The aspect of filing of the application, Exh.62 and passing of the detailed order dated 06.03.2024, has been stated. It is reiterated that there too there is no anomaly between the signed copy of the order below Exh.62. In the sixth unnumbered paragraph, factum of correction has been stated. In the next paragraph, it has been pointed out that necessary corrections were only meant to be in the name; however, the concerned Stenographer has carried out certain additional corrections of his own.
5. It has also been stated that while signing the judgment, attention was paid only to the cause-title and the body of the judgment was ignored, i.e. last page of the judgment, which apparently was wrongly mentioned as 28.12.2023 instead of 09.01.2024. Unnumbered paragraphs 8, 9, 10 and 11 read thus:
Naturally, when signing the said judgment, I only paid attention to the Cause Title, and ignored the body of the judgment i.e. A. As the date of the judgment, at the last page of the judgment, which apparently was wrongly mentioned as (28/12/2023) instead of 09/01/2024, (which was clearly wrongly mentioned, as no corrections were ordered in the body of the judgment, or, in the date of the judgment by Exh.62).
B. Further, the date of the decision at the top right head of the first page of the judgment, which should have 09/01/2024, but was mentioned as 05/01/2024.
C. Further, the paragraph no. 4 which appeared to have been taken from some other judgment, by the stenographer, on his own.
I reiterate that the reason why I did not pay any attention to the body of the judgment was for the reason that no correction were ordered in body of the judgment. The stenographer uploaded the corrected copy of the order on the website of the eCourt. It is this judgment alone which has error as aforesaid. And these error has crept only after 2 months of the original judgment. Hence, clearly, I, as Judicial Officer, had no role in the commission of the said error.
Page 10 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined
At this juncture, I would like to submit that the concerned Gujarati Stenographer (Mr.IG Shaikh) has expired on 12/11/2024 (on duty) because of a cardiac arrest. Hence, I am in no position to seek explanation of the said stenographer for the errors as aforesaid."
6. In penultimate paragraph of the explanation, it has been stated thus:-
"The aforesaid are my explanations as to why and how the certified copy provided of the impugned judgment as well as the copy of the judgment and decree, both dated 09/01/2024 passed in Regular Summary Suit no.1 of 2021, contain different paragraphs. The fact that the erroneous judgment was uploaded on website after 2 months of the original judgment may be verified and confirmed from the CIS. Moreover, no prejudice is caused to the party, for the original judgment Exh.60 and the judgment of Exh.60 as corrected, have the same set of reasons, save, paragraph number 4 of the revised judgment."
7. The explanation is not in compliance of the order dated 09.12.2024. Therefore, for the better understanding of the concerned recipient, paragraphs 1 and 4 of the certified copy of the judgment dated 28.12.2023 and mentioned "Decided on 05.01.2024" are reproduced herein below:
"(૧) અરજદાર બેંક દ્વારા હાલનો દાવો પ્રતિ વાદીઓ વિવરૂધ્ધ લ્હે ણી રકમ રૂ૫ીયા ૧,૨૯,૫૫,૬૪૭/- થા ે ઉપરના વ્યાજ સહી ની રકમ મેળવવા હાલનો દાવો સી.પી.સી. ઓર્ડ2ર-૩૭ હે ઠળ સમરી સ્યુટ રીકે દાખલ કરે લ છે .
....
....
(૪) વાદીની દાવા અરજી થા દસ્ ાવેજી પુરાવા લીસ્ટ ેમજ દસ્ ાવેજોને વંચાણે લીધા. વાદી દ્વારા ેઓની દાવાઅરજી મુજબ પ્રતિ વાદીઓએ ેઓની બેંકમાંથી લોન લીધેલ હોય, ેમજ લોન મુજબની રકમના હપ્તા ભરવામાં વિનષ્ફળ ગયેલ હોય, ે અંગેના દસ્ ાવેજી પુરાવા આંક - ૧૫ થી આંક-૫૯ સુધી રજુ રાખેલ હોય, જે વંચાણે લે ાં પ્રતિ વાદીઓએ વાદી બેંકમાંથી લોન લીધેલ હોવાનું પુરવાર થાય છે . વધુમાં કાયદાકીય જોગવાઈ ધ્યાને લે ાં પ્રતિ વાદીઓ દિદન-૧૦ માં હાજર થવામાં વિનષ્ફળ ગયેલ હોવાનું ફવિલ થાય છે . ેવા સંજોગોમાં વાદી સીવીલ પ્રોસીજર કોર્ડના ઓર્ડ2ર-૩૭ રૂલ- ૨(૩) મુજબ હુકમનામું મેળવવા હક્કદાર બને છે . વધુમાં આ કામનું રે કર્ડ2 જો ાં પ્રતિ વાદીઓને સમન્સ બજી ગયેલ હોવા છ ાં આજ દિદન સુધી પ્રતિ વાદીઓ જા ે કે ેમના પ્રતિ વિનધી મારફ ે હાજર થયેલ નથી. વધુમાં વાદી દ્વારા રજૂ રાખવામાં આવેલ દસ્ ાવેજી પુરાવા પ્રતિ વાદીઓ દ્વારા પર્ડકારવામાં આવેલ નથી. ેવા સંજોગોમાં વાદી દ્વારા રજૂ રાખવામાં આવેલ દાવાઅરજી થા દસ્ ાવેજી પુરાવાને ધ્યાને લે ાં વાદીનો દાવો વિનય સમય મયા2દામાં દાખલ થયેલ છે . ેમજ વાદીએ આંક-૧૨ થી દાવો ર્ડીક્રી કરી આપવા અરજ કરે લ છે . વાદીની દાદને વંચાણે લેવામાં આવે ો, વાદી દ્વારા ેઓની લ્હે ણી રકમ રૂ. ૧,૨૯,૫૫,૬૪૭/- થા ે ઉપર હાલનો દાવો દાખલ કયા2ની ારીખથી મળવાપાત્ર વ્યાજની રકમ સદિહ નું હુકમનામું કરી આપવા અરજ કરે લ છે . જેને ધ્યાને લે ાં વાદી દ્વારા પ્રતિ વાદીએ ેઓની બેંકમાંથી લોન લીધેલ હોવાનું Page 11 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined ફવિલ થાય છે . સદર લોન ૦૯ ટકા વ્યાજ નક્કી કરવામાં આવેલ હોવાનું વાદીના વિવ.વ.શ્રીએ ેઓની મૌખિખક રજૂ આ માં જણાવેલ છે . ેવા સંજોગોમાં વાદી દ્વારા પ્રતિ વાદીઓએ ેઓની બેંકમાંથી લોન લીધેલ હોવાનું અને ે લોન વિનયમ સમયમાં ભરપાય કરે લ ન હોવાનું થા વાદી બાકી રહે ી લ્હે ણી રકમ વ્યાજ સદિહ પર મેળવવા હક્કદાર હોવાનું પુરવાર કરે લ હોય, ેવા સંજોગોમાં વાદીનો દાવો મંજુર થવા પાત્ર હોય, નીચે મુજબનો હુકમ કરવામાં આવે છે ."
8. Pertinently, the certified copy bears the initials of the learned Presiding Officer on every page. Moreover, on the record, there is copy of another impugned judgment which bears the date 09.01.2024 and stated to be decided on 09.01.2024. Paragraphs 1 and 4 are connected to the issue in question and read thus:
"(૧) વાદી પેઢી દ્વારા હાલનો દાવો પ્રતિ વાદીઓ વિવરૂધ્ધ લ્હે ણી રકમ રૂપીયા ૧,૨૯,૫૫,૬૪૭/- થા ે ઉપરના વ્યાજ સહી ની રકમ મેળવવા હાલનો દાવો સી.પી.સી. ઓર્ડ2ર-૩૭ હે ઠળ સમરી સ્યુટ રીકે દાખલ કરે લ છે .
..
..
(૪) વાદીની દાવા અરજી થા દસ્ ાવેજી પુરાવા લીસ્ટ ેમજ દસ્ ાવેજોને વંચાણે લીધા. વાદી દ્વારા ેઓની દાવાઅરજી મુજબ વાદી કંપની પેટ્રોલીયમ પ્રોર્ડક્ટના વેચાણનું કામ કરે છે , ેમજ પ્રતિ વાદીઓ ેમના ર્ડીસ્ટ્ર ીબ્યુટસ2 છે અને પ્રતિ વાદીઓને જ્યારે જરૂર પર્ડે ત્યારે વાદીઓ પાસેથી જરૂરીયા મુજબની પેટ્રોલીયમ પ્રોર્ડક્ટ મંગાવે છે અને ે રી ે પક્ષકારો એકબીજાને ઓળખે છે . પ્રતિ વાદીઓને જ્યારે જ્ચારે પણ જરૂર પર્ડે ત્યારે ેઓએ મુકેલ ઓર્ડ2ર મુજબ વાદીએ માલ પુરો પાર્ડેલ છે . જે અનુસંધાને વાદીના બાકી લ્હે ણા પર્ડ ા હોય, અને ે અંગેના દિહસાબો વિનભાવવામાં આવ ા હોય, જે મુજબ બાકી રહે ી રકમ ચુકવવા પ્રતિ વાદીઓને અનેક વખ જાણ કરે લ હોવા છ ાં પ્રતિ વાદીઓએ નાણાં ચુકવેલ નહી. પ્રતિ વાદીઓ દ્વારા બાકી રહે ા નાણાંની ચુકવણી માટે વાદી કંપનીના નામ જોગ ચેક લખી આપેલ , જે ચેક આંક-૪૫ થી રજૂ થયેલ છે . સદર ચેક અપુર ા ભંર્ડોળના કારણે પર ફરે લ હોય, જેનો પુરાવો આંક-૪૬ થા આંક-૪૭ થી રજૂ રાખેલ છે . જે અનુસંધાને વાદીએ પ્રતિ વાદીઓને આંક-૪૮ થી નોટીસ આપેલ જે નોટીસ પ્રતિ વાદીઓને બજી ગયેલ હોવા છ ાં નોટીસ મુજબનો અમલ કરે લ ન હોય જેથી વાદીનું કાયદેસરનું લ્હે ણું હોય, સદર નાણાં ચુકવવામાં પ્રતિ વાદીઓ વિનષ્ફળ ગયેલ હોય, ે અંગેના દસ્ ાવેજી પુરાવા આંક -૧૫ થી આંક-૫૯ સુધી રજૂ રાખેલ હોય, જે વંચાણે લે ાં પ્રતિ વાદીઓએ વાદી કંપનીમાંથી ખરીદ કરે લ પેટ્રોલીયમ પેદાશ લીધેલ હોવાનું પુરવાર થાય છે . વધુમાં કાયદાકીય જોગવાઈ ધ્યાને લે ાં પ્રતિ વાદીઓ દિદન-૧૦ માં હાજર થવામાં નિ ષ્ફળ ગયેલ હોવા ું ફલીત થાય છે . તેવા સંજોગોમાં વાદી સીવીલ પ્રોસીજર કોડ ા ઓડર-૩૭ રૂલ-૨(૩) મુજબ હુકમ ામું મેળવવા હક્કદાર બ ે છે . વધુમાં આ કામ ું રેકડ જોતાં પ્રનિતવાદીઓ ે સમન્સ બજી ગયેલ હોવા છતાં આજ નિદ સુધી પ્રનિતવાદીઓ જાતે કે તેમ ા પ્રનિતનિ ધી મારફતે હાજર થયેલ થી. વધુમાં વાદી દ્વારા રજૂ કરવામાં આવેલ દસ્તાવેજી પુરાવા પ્રનિતવાદીઓ દ્વારા પડકારવામાં આવેલ થી. તેવા સંજોગોમાં વાદી દ્વારા રજૂ રાખવામાં આવેલ દાવાઅરજી તથા દસ્તાવેજી પુરાવા ે ધ્યા ે લેતાં વાદી ો દાવો નિ યત સમય મયાદામાં દાખલ થયેલ છે . તેમજ વાદીએ આં ક-૧૨ થી દાવો ડીક્રી કરી આપવા અરજ કરેલ છે . વાદી ી દાદ ે વંચાણે લેવામાં આવે તો, વાદી દ્વારા તેઓ ી લ્હે ણી રકમ રૂ. ૧,૨૯,૫૫,૬૪૭/- તથા તે ઉપર હાલ ો દાવો દાખલ કયા ી તારીખથી મળવાપાત્ર વ્યાજ ી રકમ સહીત ું હુકમ ામું કરી આપવા અરજ કરેલ છે . જે ે ધ્યા ે લેતાં વાદી દ્વારા પ્રનિતવાદીઓએ તેમ ી પાસેથી પેટ્રોલીયમ પેદાશ ખરીદ કરેલ હોવા ું પુરવાર કરેલ છે . વાદી દ્વારા Page 12 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025 NEUTRAL CITATION C/CA/5191/2024 ORDER DATED: 29/01/2025 undefined તેઓ ી દાવાઅરજીમાં ૨૧ ટકા વ્યાજ ી માંગણી કરેલ છે . પરંતુ વ્યાપારીક વ્યવહારો ે ધ્યા ે લેતાં વાદી ે વાનિ=ક ૯ ટકા લેખે લ્હે ણી રકમ ઉપર વ્યાજ ચુકવવું યોગ્ય જણાય છે . વાદી બાકી રહે તી લ્હે ણી રકમ વ્યાજ સહીત પરત મેળવવા હક્કદાર હોવા ું અ ે તે મુજબ ું હુકમ ામું મેળવવા હક્કદાર હોવા ું પુરવાર કરેલ હોય, તેવા સંજોગોમાં વાદી ો દાવો મંજરૂ થવા પાત્ર હોય, ીચે મુજબ ો હુકમ કરવામાં આવે છે ."
9. Clearly, as there are different copies of the impugned judgment arising out of Regular Summary Suit no.1 of 2021 was found that this Court, requested for calling of the remarks and/or explanation. It is required to be noted that a report dated 21.12.2024 of the learned Principal District Judge, Vadodara has been received, indicating that the explanation offered is genuine.
10. In view of the above discussion, the explanation offered, is not in compliance with the order which has been passed. We, therefore, request the learned Principal District Judge, Vadodara to look into the papers and submit a detailed report. Let the report reach this Court by the next date of hearing. Copy of this order be sent to the learned Registrar General for onward compliance.
11. List the matter on 20.01.2025. Interim relief granted earlier, to continue till then."
15. Considering the nature of the orders passed, this Court, is of the opinion that the matter, be placed before the learned Unit Judge. The Registry is directed to make available all the three copies of the judgment, two dated 28.12.2023 (correct and incorrect) and third copy dated 09.01.2024, all Exh-60, passed in Regular Summary Suit No.1 of 2021; the orders dated 09.12.2024, 24.12.2024 and 22.01.2025 passed by this Court, so also the explanations offered by the learned Judge and the report/communication of learned Principal District Judge.
(SANGEETA K. VISHEN,J) (NIRAL R. MEHTA,J) V.J. SATWARA Page 13 of 13 Uploaded by V.J. SATWARA(HC00170) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:47:49 IST 2025