Bombay High Court
Vipul Himatlal Shah vs Kashmira Bhupendra Saraiya on 7 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-OS:11953-DB
COMAPST-2491-2024 BDP-SPS
BHARAT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DASHARATH
PANDIT ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by BHARAT
DASHARATH
PANDIT
APPEAL (ST) NO.2941 OF 2024
Date: 2024.08.08
19:24:40 +0530 IN
SUMMONS FOR JUDGMENT NO.4 OF 2023
IN
COMMERCIAL SUMMARY SUIT NO.35 OF 2022
WITH
INTERIM APPLICATION (L) NO.3462 OF 2024
IN
APPEAL (ST) NO.2941 OF 2024
Vipul Himatlal Shah ...Appellant/
Applicant.
Vs.
Kashmira Bhupendra Saraiya .. Respondent
-----
Mr Nikunj Mehta, Advocate with Mr. Aniruddha Lad,
Advocate i/by KLT Law Associates, Advocates for the
Appellant/Applicant.
Mr. Mohan Rao, Advocate for the respondent.
-------
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 07th AUGUST, 2024.
P.C. :
1] The appellant being aggrieved by the grant of conditional
leave to defend the Summary Suit filed by the respondent has
challenged the order dated 06/11/2023 in this appeal filed
under the provisions of Section 13(1-A) of the Commercial
Courts Act, 2015. The respondent on the strength of
promissory notes issued by the appellant filed Commercial
Summary Suit No.35 of 2022 under the provisions of Order
COMAPST-2491-2024 BDP-SPS
XXXVII Rule 1 of the Code of Civil Procedure, 1908 seeking a
decree for an amount of Rs 1,10,40,000/-. The learned
Single Judge while granting conditional leave to defend
observed that the transaction between the parties leading to
execution of the promissory notes was not in dispute.
However, on the issue of limitation as well as the allegation of
overwriting on the promissory notes, granted leave to defend
the suit to the appellant subject to depositing an amount of
Rs 60,00,000/- within a period of six weeks of uploading the
order.
2] Mr. Nikunj Mehta, the learned counsel for the appellant
submitted that the learned Judge having prima facie found
that triable issues arose and that it was necessary to record
evidence, erred in granting conditional leave to defend in
such circumstances. Relying upon the decision of the
Supreme Court in B.L. Kashyap and Sons Limited vs. JMS
Steels and Power Corporation and another (2022) 3 SCC 294,
it was submitted that if the Court finds that the defendant
has raised triable issues, he would be entitled to
unconditional leave to defend. Since the appellant had
contended that the suit as filed was barred by limitation in
view of Article 35 of the Limitation Act, 1963 as well as the
aspect that the promissory notes were executed in the year
2010 on which there appeared to be overwriting, the learned
Single Judge rightly found that triable issues arose in the
suit. There was no justification therefore to grant conditional
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leave to defend the suit for adjudicating the triable issues. It
was urged that in the light of the observations in paragraph
13 of the impugned order, the defendant was, in fact, entitled
to unconditional leave to defend the suit. It was thus prayed
that the impugned order be set aside and unconditional leave
be granted to the appellant.
3] Per contra, Mr. Mohan Rao, the learned counsel for the
respondent supported the impugned order. According to him,
the learned Judge had rightly granted conditional leave to
defend the suit in the backdrop of the fact that the defendant
did not dispute the monetary transaction between the parties.
Since the amount of Rs 60,00,000/- was the principal
amount, the defendant was directed to deposit that amount
as a condition for defending the suit.
4] Having heard the learned counsel and having perused
the documents on record, we do not find any reason to
interfere with the order dated 06/011/2023 granting
conditional leave to defend the suit as filed. The claim in the
suit was for return of the principal amount of Rs 60,00,000/-
with interest from April, 2018 to March, 2022 being an
amount of Rs 50,40,000/-. The total claim therefore was Rs
1,10,40,000/-. The transaction of loan at the instance of the
respondent and her husband as entered into with the
appellant was not disputed by the appellant. The issuance of
promissory notes by the appellant is also not in dispute. It is
COMAPST-2491-2024 BDP-SPS
after noticing that there was some difference in writing of the
name of the plaintiff on the promissory notes of the year 2010
that the learned Judge found that triable issues based on bar
of limitation and aspect of forgery arose. According to the
respondent, the appellant paid interest of an amount of Rs
1,05,000/- on 21/03/2018 and hence the suit for recovery as
filed in March, 2022 was within limitation. We do not find
that the view taken by the learned Single Judge deserves
interference. In B.L. Kashyap and Sons Limited (supra), it
has been held that even if the defendant raises triable issues
but it is doubtful whether such issues are raised by the
defendant in good faith or there is a doubt about genuineness
of the issues, it is open for the Trial Court to balance the
requirement of expeditious disposal of commercial cases on
the one hand and not shutting out triable issues by unduly
severe orders on the other hand. In such an eventuality, it is
open for the Court to impose the appropriate conditions in
the facts of the case. In our view, this is what has been done
by the learned Single Judge. After noting that the
transaction was not disputed and that the appellant
had received the principal amount of Rs 60,00,000/-,
conditional leave to defend was granted subject to deposit of
that amount. The issue with regard to interest would be the
matter of contest between the parties.
5] We therefore find that the learned Single Judge has
taken a possible view of the matter and has exercised
COMAPST-2491-2024 BDP-SPS
discretion in a fair manner while granting conditional leave to
defend. The broad governing principles under Order XXXVII
Rule 3 of the Code have been kept in mind. We do not find
any reason to interfere with the said order. By clarifying that
the observations made in the appeal are only for considering
the challenge to the order granting conditional leave and
keeping all the points on merit open for being urged in the
suit, the Commercial Appeal stands dismissed with no order
as to costs. Pending Interim Application is also disposed of.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
