Bombay High Court
M/S S.P. Fabritech, Through ... vs Aarti Infra-Projects Pvt. Ltd., ... on 11 April, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5587/2016
M/s. S.P. Fabritech,
through its Proprietor,
Shri Sudhir S/o Neeranjan Nayak,
aged 44 Yrs., Occu. Business,
R/o 302, Chandannagar, Nagpur. ..Petitioner.
..Vs..
1. Aarti Ifra-Projects Pvt. Ltd.,
A Company duly registered under
the Companies Act, having its
registered office at Lanjewar Bhavan,
Tahsil Police Station Road,
Gandhibagh, Nagpur - 440 002.
2. Shri Kanhaiyalal S/o Shivpratap Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
3. Shri Benigopal S/o Shivpratap Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
4. Shri Vinod S/o Kanhaiyalal Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
5. Shri Krishna S/o Kanhaiyalal Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
6. Shri Vikas S/o Kanhaiyalal Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
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Pvt. Ltd.
7. Smt. Suman Benigopal Mandahana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
8. Smt. Savita Mandhana,
aged Major, Occu. Business,
the Director of Aarti Infra-Projects
Pvt. Ltd.
All respondents Nos.2 to 8 are
R/o 228, Krishna Kunj, Wardhaman
Nagar (East) Nagpur -8. ..Respondents.
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Shri M.I. Mourya, Advocate for the petitioner.
Shri S.V. Bhutada, Advocate for the respondent Nos.1 to 8.
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CORAM : Z.A.HAQ, J.
DATE : 11.4.2017.
ORAL JUDGMENT
1. Heard Shri M.I. Mourya, Advocate for the petitioner and Shri S.V.
Bhutada, Advocate for the respondent Nos.1 to 8.
2. Rule. Rule made returnable forthwith.
3. The petitioner has filed the civil suit under Order 37 of the Code of
Civil Procedure praying for decree for an amount of Rs.6,00,000/- alongwith
interest and other ancillary reliefs. In this civil suit, the defendants filed an
application (Exh. No.31) seeking permission / leave to defend. The learned
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trial Judge has allowed the application by the impugned order and has granted
leave to defendants to defend the civil suit, unconditionally. The plaintiff being
aggrieved by the above order, has filed this petition.
4. According to the defendants, triable issues arise for adjudication in
the civil suit and, therefore, the grant of unconditional leave by the trial Court
to defend is proper and cannot be faulted with. The case of the defendants' is
that the claim of the plaintiff is based on a cheque which was stolen, that the
cheque is signed and issued by the defendant No.5 on behalf of the then
partnership firm, that the partnership firm is not in existence and now it is
converted into a Company and, therefore, none of the defendants including
defendant No.5 are liable to satisfy the claim of the plaintiff.
5. After considering the submissions made by the respective parties, I
find that there are pleadings on record which show that the defendant No.1 /
Company has taken over the liability of the earstwhile partnership firm. In the
application (Exh. No.31) filed by the defendants there is nothing on record to
show that the defendant No.1 / Company has raised any issue which can be
said to be a triable issue for the purposes of grant of leave under Order 37 of
the Code of Civil Procedure, to defend. The trial Court has not adverted to this
aspect. The application (Exh. No.31) is jointly filed by all the defendants
including the Company. The non-consideration of relevant aspects by the
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learned trial Judge vitiates the order passed by him.
6. In my view, considering the fact that a joint application came to be
filed on behalf of all the defendants including the defendant No.1 / Company
seeking leave to defend and as the defendants have not been able to show that
a triable issue is raised on behalf of the defendant No.1, it has to be held that
the defendants are entitled for grant of leave to defend but it cannot be without
imposing condition of deposit. The impugned order is modified. The order
passed by the trial Court granting leave to defend is maintained, however,
order granting unconditional leave to defend is modified and it is directed that
leave to defend is granted on condition that the defendants furnish bank
guarantee for Rs.10,00,000/- till 5th June, 2017. If the bank guarantee is not
furnished till 5th June, 2017, the trial Court shall proceed further according to
law. As the civil suit is of 2011 the trial Court is directed to dispose the civil suit
till 30th September, 2017. Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
