Gujarat High Court
Manishbhai Mohanlal Shah (Chopra) vs Manhar Sukhlal Patel on 11 November, 2025
NEUTRAL CITATION
C/FA/1365/2013 JUDGMENT DATED: 11/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1365 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✔
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MANISHBHAI MOHANLAL SHAH (CHOPRA)
Versus
MANHAR SUKHLAL PATEL
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Appearance:
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1
MR NK MAJMUDAR(430) for the Defendant(s) No. 1
MR.MANHAR S PATEL(6275) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 11/11/2025
ORAL JUDGMENT
1. The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (For short 'CPC') by the appellant - original defendant assailing the judgment and decree dated 26.02.2009 passed by Chamber Judge, City Civil Court, Ahmedabad in Summary Suit No.2357 of 2008. Page 1 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025
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2. Heard learned advocate Mr.Parth Tolia for the appellant - original defendant and learned advocate Mr.N.K.Majmudar with learned advocate Mr.Shivam N.Majmudar for the respondent - original plaintiff
3. Brief facts are as under:-
3.1 The respondent - plaintiff had filed Summary against the appellant - defendant for recovery of Rs.9,50,000/- alongwith interest at the rate of 18% per annum. It is the case of plaintiff that the defendant was in need of money therefore, plaintiff paid Rs.9,50,000/- to the defendant in September 2002 on condition that amount shall be repaid within a period of 6 months. A Promissory Note dated 06.09.2002 was also executed by defendant in favour Page 2 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined of plaintiff-respondent. In repayment of the said amount, defendant issued a cheque in favour of plaintiff. However, the said cheque was dishonoured on account of the account being closed. Thereafter, plaintiff issued notice dated 04.03.2004 to defendant.
Plaintiff also filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against defendant. On the date of filing suit, said complaint was pending.
3.2 The summons of the suit were served upon defendant and thereafter plaintiff took out summons for judgment, against which, defendant filed an Affidavit seeking leave to defend. The learned trial Court granted unconditional leave to defend, against which, plaintiff filed Special Civil Application No.23160 of 2007 before this Court which came to be allowed and Page 3 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined defendant was granted leave to defend suit on condition to deposit 75,000/- on or before 25 th September, 2008. Since the defendant did not comply with the said order, plaintiff took out a Non-payment Certificate from the Registry of the City Civil Court, Ahmedabad. Consequently, learned trial Court passed judgment and decree in favour of plaintiff by resorting to the provisions contained under Order XXXVII Rule 3(6)(b) of the CPC.
3.3 Being aggrieved and dissatisfied with impugned judgment and decree, defendant - appellant has filed the present appeal.
4. Learned advocate for the appellant contended that the learned trial Court has committed an error in straightway passing a decree against the Page 4 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined appellant. It is contended that the plaintiff never entered in the witness box and proved his case by leading oral evidence. The plaintiff also failed to produce any original documents. In absence of any oral documentary evidence, learned trial Court ought not to have passed the judgment and decree in favour of plaintiff.
4.1 It is further contended that the judgment and decree is ex-parte as defendant was not permitted to file Written Statement to contest the suit. Appellant also preferred Civil Misc. Application No.509 of 2004 for setting aside the ex-parte judgment and decree. However, the said application came to be dismissed by learned trial Court on 05.01.2007. Against which, Special Civil Application No.3134 of 2007 was Page 5 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined preferred by defendant before this Court. The said Special Civil Application came to be allowed by remanding the matter back to the learned trial Court for deciding afresh. Upon remand, learned trial Court again passed the judgment and decree which has been assailed by way of present First Appeal. In Special Civil Application No.23160 of 2007, appellant had sought extension of time to deposit the amount directed to be deposited by appellant-defendant. Appellant deposited Rs.25,000/- on 05.08.2008 before the learned trial Court and remaining amount of Rs.50,000/- could not be deposited due to financial constraints. So far as remaining amount of Rs.50,000/- is concerned, this Court while condoning the delay in preferring First Appeal, directed the appellant to deposit the same which came to be deposited by the Page 6 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined appellant on 09.06.2014 before this Court. It is further contended that the entire decretal amount has been deposited by appellant, and therefore, decree may be quashed and set aside and an opportunity may be given to the appellant-defendant to contest the suit. Except above, no other submissions are made by learned advocate for the appellant.
5. Per contra, learned advocate for respondent-plaintiff supported the judgment and decree and contended that the suit came to be filed by respondent - plaintiff for recovery of advance loan amount. A promisory note dated 06.09.2002 was also executed by defendant in favour of plaintiff. The learned trial Court granted unconditional leave to defend, the said order was assailed by plaintiff before Page 7 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined this Court, wherein defendant was granted conditional leave to defend, subject to deposit Rs.75,000/- on 25 th July 2008. The defendant did not comply with the said order. Resultantly, execution petition was filed. 5.1 It is further contended that, in the meantime, defendant filed Civil Misc. Application No.509 of 2004 before the learned trial Court for setting aside ex-parte decree. The order of rejection of said application was assailed by defendant before this Court by way of Special Civil Application No.3134 of 2007, wherein this Hon'ble Court set aside the impugned order dated 04.04.2007 and remanded the matter to the learned trial Court for fresh consideration. After remand, learned trial Court passed a judgment on the condition to deposit amount was Page 8 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined not complied with.
5.2 The appellant also sought extension of time to deposit the amount. This Court was pleased to extend the time till 25.09.2008 on condition that the appellant shall deposit an amount before the learned trial Court. However, the said condition imposed by this Court was also not complied with by defendant. Consequently, appellant obtained Non-payment certificate which was issued by the Registrar City Civil Court, Ahmedabad on 10.02.2009.
5.3 Pursuant to the said Non-payment Certificate, learned trial Court rightly decreed the suit by invoking the provisions of order XXXVII Rule (3)(6)
(b) of the CPC. It is contended that when the condition imposed upon defendant is not complied with, plaintiff Page 9 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined shall be entitled to judgment forthwith. It is further contended that once the provisions of order XXXVII Rule (3)(6)(b) of CPC are invoked, plaintiff is not required to prove the case by leading either oral or documentary evidence.
5.4 In support of submissions, learned advocate for respondent has relied upon following decisions:-
(i) National Commodity Clearing Ltd. (NCCL) Vs. Dita Comtrade Limited passed by the Hon'ble Bombay High Court in Commercial Summary Suit No.32 of 2020;
(ii) K.R.Patel HUF Vs. M.M.Developers and Ors.
Reported in (2015) 03 BOM CK 0013 passed by the Hon'ble Bombay High Court.
5.5 Except above, no other submissions are made by learned advocate for the respondent. Page 10 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025
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6. I have considered the submissions canvassed by learned advocates for the parties and perused the record and proceedings. It is an undisputed fact culled out from the record that the order of unconditional leave to defend passed by learned trial Court was assailed by plaintiff before this Court wherein this Court while granting leave to defend, imposed condition to deposit an amount of Rs.75,000/-. Admittedly, the condition imposed by this Court was not complied within stipulated time. Despite the extension to deposit money granted, defendant failed to comply with condition. Resultantly, on issuance of non-payment certificate by Registrar, City Civil Court, Ahmedabad, a decree came to be passed in favour of plaintiff. The contention raised by learned advocate for the appellant that the defendant ought to have been Page 11 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined given an opportunity to file Written Statement and plaintiff was required to led oral as well documentary evidence in proving its case, though sounds attractive but has no force in the eye of law.
7. To consider the submission of learned advocate for the appellant, it would be profitable to reproduce Sub-clause (b) of Sub-rule 6 of Rule 3 of Order XXXVII of the CPC which is as under:-
"3. Procedure for the appearance of defendant (6) At the hearing of such summons for judgment
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judges may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith."
The aforesaid provisions mandates that when the defendant is permitted to defend the suit on condition to give security which may be in form of money, non-compliance of condition by defendant, Page 12 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined would follow judgment forthwith.
8. The language of Rule 3(6)(b) of order XXXVII of the Code is unambiguous and categorical. It lays down that when a defendant has been directed to defend the suit on a condition to deposit an amount, if such condition has not been complied with, the provision confers an immediate and indefensible right upon the plaintiff to obtain a decree. Once defendant defaulted, no further proceedings were warranted and the only logical consequence was the decree in favour of plaintiff.
9. The word "shall" and "forthwith" indicate a legislative mandate and "forthwith" leaves no scope for postponement beyond what is reasonably required. Since the grant of leave to defend was conditional and Page 13 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined based on a prima facie evaluation of facts, failure to comply with the condition automatically extinguished the defence. In such circumstances, the plaintiff is not required to undergo a full fledged trial and the Court below was not required to independently reassess the plaintiff's evidence. Non-compliance with conditional leave under Rule 3(6)(b) of Order XXXVII of CPC leaves the Court with no discretion except to pass judgment forthwith. Order XXXVII of CPC cannot be equated with an ex-parte decree in an ordinary civil suit, since in a summary procedure, the statutory consequences operate automatically.
10. In the present case, defendant has admittedly failed to comply with the condition imposed therefore, plaintiff shall be entitled the judgment Page 14 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined forthwith. The intention of the legislature is very clear which has been upheld by series of decisions of the Hon'ble Apex Court as well as of the High Courts of different States. The conditional order, in the present case, as admitted by the appellant, was not complied with even after time for compliance was extended by this Court. The principal amount under decree was deposited by appellant - defendant only after filing the present First Appeal. Compliance with the conditional order after the passing of judgment and decree is of no importance in setting aside the judgment and decree. Such deposit is not a compliance of conditional leave. Deposit of Rs.75,000/- after the passing of judgment and decree is nothing but an attempt on the part of the plaintiff in getting the appeal admitted. Page 15 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025
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11. In such cases of non-compliance of condition, plaintiff is not expected to lead oral evidence and he is not required to produce original documents since the provisions contained in Sub-clause
(b) of Sub-rule (6) of Rule (3) of Order XXXVII of Code envisages a decree shall be followed forthwith upon such non-compliance of conditional order. Had the defendant not appeared in the suit and not filed any leave to defend affidavit and on non-appearance of defendant, judgment and decree is passed only under such circumstances, plaintiff is required to submit affidavit in lieu of examination-in-chief as contemplated under Order XVIII Rule 4 of CPC and also has to produce original documents in support of claim. However, in the eventuality of non-compliance of the conditional order, plaintiff is not required to led Page 16 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined any evidence to prove its case.
12. In the case of National Commodity Clearing (supra), facts akin to the present case arose before the High Court of judicature at Bombay. While discussing the question paused before the Court, in paragraph 18, the Hon'ble High Court has observed that even in absence of an application seeking ex-parte decree, the objection raised by defendant is untenable. There is no requirement to file any application seeking ex-parte decree against the defendant on non-compliance of conditional order. In para 18, the Bench observed as under:-
"18. I am afraid, I am unable to appreciate the submissions made by Mr.Modi, learned Senior Counsel appearing for the Defendant. As has been noted above and in the order dated 2nd April 2025, Mr.Setalvad on behalf of the Plaintiff had already made an application for ex-parte decree pursuant to paragraph 73(iii) of the order granting conditional leave along with certificate of non- deposit. There is no requirement that the said application be made in writing. Therefore, this objection is untenable. Secondly, the reliance by Mr.Modi on paragraphs 70, 71 and 72 to submit that no Page 17 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined judgment can be given forthwith is also not tenable in view of the two decisions cited above where it has been held that:
(i) in a case where the Defendant had not complied with the conditional order in making deposit of the amount upon which leave to defend was granted, reading of Order XXXVII Rule 3(6)(b) of the CPC makes it clear that on failure of the Defendant to comply with the condition imposed by the Court, the Plaintiff is entitled to judgment forthwith;
(ii) when the Defendant fails to comply with the conditional order passed under Order XXXVII of the CPC, the Defendant is precluded from further contesting the Plaintiff's claim and that the facts stated in 23-COMSS-32-2020.doc the plaint must be considered to have been admitted by the Defendant and the Plaintiff becomes entitled to judgment;
(iii) Order XXXVII not only provides for abridgment of the procedure of Suits covered by the said provisions but also the said provisions restrict and / or curtail the rights of the Defendant in these Suits to contest the Plaintiff's claim.
12. In the case of K.R.Patel Huf (supra), order of conditional leave to defend was not complied with by the defendant. However, the learned Court below therein recorded that the suit to proceed without the Written Statement of the defendant. The plaintiff was proceeded on the basis that written statement has not been filed by defendant and applied provisions when defendant does not file written statement. In paras 5, 7 Page 18 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined and 8, the High Court of Bombay has observed under:-
5. Heard the Learned Counsel for the parties. The Learned Counsel appearing on behalf of the Petitioner/original Plaintiff Shri. BGP. 4 of 7 WP-1857-15.doc 09.03.2015 Sharan Jagtiani would contend that the procedure adopted by the Trial Court is contrary to the procedure prescribed by Order XXXVII Rule (3) (6)(b) of the CPC. The Learned Counsel would contend that once the condition by which leave was granted has not been complied by the Defendants, the Plaintiffs are entitled to a judgment. The Learned Counsel seeks to rely upon a judgment of the Division Bench of this Court reported in AIR 1989 Bombay 150 in the matter of M/s. D. Shanalal and etc. Vs. Bank of Maharashtra and also the judgment of a Learned Single Judge of the Delhi High Court reported in AIR 1995 Delhi 252 in the matter of Standard Chartered Bank Vs. M. S. Handa and others
7. Having heard the Learned Counsel for the parties, in my view the course of action that is proposed to be followed by the Trial Court can be said to be in contravention of the mandate of Order XXXVII Rule (3)(6) (b) of the CPC. A reading of the said provision makes it clear that on failure of the Defendant to comply with the condition imposed by the Court, the Plaintiff is entitled to judgment forthwith. The said provision BGP. 5 of 7 WP-1857-15.doc 09.03.2015 was the subject matter of the judgment of a Division Bench of this Court in M/s. D. Shanalal's case (supra), where the Division Bench has observed that when the Defendant fails to comply with a conditional order passed under Order XXXVII, the Defendant is precluded from further contesting the plaintiff's claim and that the facts stated in the plaint must be considered to have been admitted by the Defendant and the Plaintiff becomes entitled to judgment. The Division Bench has further observed that Order XXXVII not only provides for abridgment of the procedure of suits covered by the said provisions but also the said provisions restrict and/or curtail the rights of the Defendants in these suits to contest the Plaintiff's claims.
8. In so far as the judgment in Standard Chartered Bank's case (supra) is concerned, a Learned Single Judge of the Delhi High Court in the said case has relied upon the judgment of the Division Bench of this Court in M/s. D. Shanalal's case (supra), the Learned Single Judge has reiterated the proposition of law that the condition having not been fulfilled by the Defendant, leave to defend would be deemed to have been refused to the Page 19 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025 NEUTRAL CITATION C/FA/1365/2013 JUDGMENT DATED: 11/11/2025 undefined said Defendant and the Plaintiff becomes entitled to a judgment.
In the light of the aforesaid judgments, it is not possible to countenance the submissions urged on behalf of the Defendants by Shri. Javeed Hussein. There is no scope for any further enquiry and the Plaintiff BGP. 6 of 7 WP-1857-15.doc 09.03.2015 would be entitled to judgment forthwith. The Trial Court would therefore have to proceed on the basis that the claim in the plaint is accepted and has to proceed to pass judgment in terms of the law which has been enunciated by the Division Bench of this Court in M/s. D. Shanalal's case (supra). With the aforesaid observations, the Writ Petition is disposed of. The Learned Counsel to inform the developments in the above Writ Petition to the Trial Court when the suit comes up for hearing. The above Writ Petition is allowed to the aforesaid extent. Rule is accordingly made absolute in the aforesaid terms, with parties to bear their respective costs.
13. In the background of the above stated facts and in light of the settled proposition of law, in my view, the judgment and decree passed by the learned Court below is legal and as per the provisions contained in Order XXXVII Rule 3(6)(b) of the CPC. Resultantly, First Appeal fails and the same is dismissed. Record and proceedings be sent back to the concerned Court. No order as to costs.
(D. M. DESAI,J) MANOJ Page 20 of 20 Uploaded by MANOJ KUMAR(HC01092) on Tue Nov 18 2025 Downloaded on : Tue Nov 18 20:39:37 IST 2025