Krupay Tradepipes Pvt. Ltd vs Amit B. Mittal
2021 Latest Caselaw 11136 Bom

                   Digitally signed
       IRESH       by IRESH
                   SIDDHARAM
       SIDDHARAM   MASHAL
       MASHAL      Date: 2021.08.25
                   11:26:28 +0530
                                                                      9.8143.19 wp.doc

ISM
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                      CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO. 8143 OF 2019

      KRUPAY TRADEPIPES PVT. LTD.                                     ....PETITIONER

              V/s.

      AMIT B. MITTAL                                                  .....RESPONDENT

      Mr. Atul V. Singh for the petitioner
      Mr. Rajiv Chavan Senior Advocate i/b Mr. Girish Kedia for respondent


                                      CORAM :   NITIN W. SAMBRE, J.

                                      DATE:     AUGUST 17, 2021.

      P.C.:

      1]      In a summary suit initiated under Order 37 of Code of Civil

Procedure, 1908 (Hereinafter referred to as 'C.P.C.' for the sake of

brevity) summons for judgment came to be moved by respondent-

plaintiff seeking decree for recovery of Rs. 29,51,504/- with interest @

18% per annum towards steel goods supplied to the petitioner-

defendant.

2] Court below while dealing with such prayer, passed an order

9.8143.19 wp.doc

while exercising powers under Order 37 Rule 3(5) of C.P.C. thereby

granting leave to defend subject to condition of deposit of Rs. 16

Lakhs within period of 15 days from the date of order which is

questioned herein.

3] Counsel for the petitioner-defendant would urge that court

below has erred in putting the petitioner to unreasonable conditions

of deposit of Rs. 16 Lakhs on the ground that at the said stage,

petitioner-defendant cannot be put to unreasonable condition of

production of evidence so as to substantiate claim of strong defend-

able and genuine case. He would draw support from the Judgment of

the Apex Court in the matter of IDBI Trusteeship Services Limited Vs.

Hubtown Limited (2017) 1 SCC 568 so as to substantiate the same.

He would also invite attention of this Court to rival pleadings of the

parties and the explanation tendered by the petitioner while seeking

unconditional leave to defend.

4] I have appreciated the said contentions in the light of the

observations made by the Court below. As against claim of Rs.

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29,51,504/-, petitioner-defendant is put to a condition of deposi of

Rs. 16 Lakhs. Admittedly, petitioner is facing prosecution under the

provisions of Negotiable Instruments Act as the cheques alleged to

have been issued in the transaction in question based on which suit

is initiated were dishonored.

Court while dealing with prayer for grant of leave to defend can

direct the defendant to deposit part of the amount involved in claim

provided such amount can be prima-facie seem to be payable.

5] Petitioner though has tried to claim that cheques were issued in

an earlier transaction i.e. dated 29/02/2016 whereas suit is preferred

as against transaction dated 05/03/2016 and 06/03/2016, but for

plea raised by the petitioner, there is hardly any convincing material

to infer the same.

The contention of the Petitioner that he cannot be called

upon to produce evidence in support of the claim of existence of

strong valid defendable case, if considered, the least that was

expected of the Petitioner-Defendant was to demonstrate from the

pleadings and available material that there is a triable issue and the

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Petitioner- Defendant has a strong case. In such a situation, the

pleadings of the Petitioner, so as to establish his claim that he has a

strong valid defendable case, has not been inferred or demonstrated.

6] The fact remains that invoice, dishonour of cheques and other

material relied on by the Respondent-plaintiff for the purpose of

issuance of summons for judgment. That being so, condition to which

the petitioner is put by the learned court while exercising powers

under Order 37 Rule 3(5) of C.P.C. appears to be reasonable and

justifed. The condition on which petitioner is granted leave appears

to be reasonable considering the fact that petitioner has failed to

establish a strong, defendable and genuine case. No interference is

called for in extraordinary jurisdiction. Petition as such fails, stands

dismissed.

7] Time to deposit an amount of Rs. 16 Lakhs ordered by the

Court is extended by 4 weeks from today.

[NITIN W. SAMBRE, J.]