Arvindbhai Ambalal Patel vs Yougesh P. Pandya
2021 Latest Caselaw 18484 Guj

     C/SCA/19170/2021                                ORDER DATED: 16/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 19170 of 2021
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                        ARVINDBHAI AMBALAL PATEL
                                 Versus
                           YOUGESH P. PANDYA
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Appearance:
MR ARPIT P PATEL(5497) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 16/12/2021
                   ORAL ORDER

1. By preferring this petition, petitioner has challenged the

impugned order dated 30.10.2021 passed below Exh.11 by

learned Additional Judge, Small Cause Court, Vadodara in

Summary Suit No.219 of 2017 rejecting the application leave

to defend in Summary Suit No.219 of 2017.

2. Heard learned advocate appearing for petitioner.

3. Considering the issue involved in the present petition

and the order passed by the Trial Court rejecting the

application Exh.11, this Court deems it fit not to issue any

notice to the respondent.

4. Learned advocate for petitioner has submitted that the

Trial Court has committed grave error in not considering the

facts of the present petitioner by granting permission to leave

to defend. It is further submitted that substantial defence was

C/SCA/19170/2021 ORDER DATED: 16/12/2021

raised by the present petitioner, and therefore, leave to defend

was required to be granted unconditionally. It is further

submitted that the defendant has raised triable issues

indicating that he has a fair and reasonable defence, however,

the Trial Court has committed an error in not considering the

defence of the present petitioner. It is further submitted that

the transaction narrated by the plaintiff is a doubtful as it is

evident from the evidence that so-called cheques have been

deposited after its valid period, and therefore, the Trial Court

ought to have granted unconditionally leave to defend to the

present petitioner. It is further submitted that two cheques

issued by the present petitioner were on account of security

and amount of Rs.2,00,000/- was paid by the present

petitioner. That no reasons are passed by the Trial Court and

discussed while rejecting the application preferred by the

present petitioner at Exh.11, and therefore, it is requested by

learned advocate appearing for the petitioner to quash and set

aside the impugned order and allow the application Exh.11

unconditionally.

5. Having heard learned advocate as well as perused the

documents produced on record, it appears that Summary Suit

No.219 of 2017 was preferred by the respondent herein before

C/SCA/19170/2021 ORDER DATED: 16/12/2021

the learned Small Cause Court, Vadodara under Order 37 of

the Code of Civil Procedure, 1908 praying to pass decree for

sum of Rs.3 lakhs along with the interest at the rate of 24%

from the date of filing of the suit. As per the averments made

by petitioner, on account of business transaction, two cheques

were issued by the defendant dated 10.08.2016 for the sum of

Rs.1 lakh and dated 20.09.2016 for the sum of Rs.2 lakhs of

the State Bank of India, Harni Branch (Rural). As per the

averments made in the plaint, both the cheques were

deposited by the original plaintiff in his account, which were

returned back with an endorsement "insufficient funds".

Thereafter, notice was issued by the plaintiff, which was duly

served to the defendant, but no amount was cleared by the

defendant, and therefore, the suit was filed. It appears that

vide application Exh.8, the plaintiff requested for summons for

judgment on 24.04.2018. The present petitioner filed one

application below Exh11 with a request to permit him to

defend unconditionally. From the contents of the application

Exh.11, he has clearly admitted that handloan of Rs.2 lakhs

was received by him from the plaintiff and two cheques were

issued by way of security under his signature. It is further

contented that Rs.50,000/- was paid by him on 28.07.2016,

C/SCA/19170/2021 ORDER DATED: 16/12/2021

further amount of Rs.50,000/- was paid to the plaintiff on

05.08.2016, and thereafter, Rs.75,000/- was paid by cash on

25.10.2016 and further amount of Rs.25,000/- was paid to

the plaintiff by cash. There is nothing on record that such

amount was paid by the defendant to the plaintiff. It is

undisputed fact that two cheques under signature of the

defendant were issued to the plaintiff, which were returned

back. The defendant has completely denied of any amount

dues, as prayed by the plaintiff in the suit. The Hon'ble

Supreme Court, in the case of M/s. Mechelec Engineers and

Manufacturers Vs. M/s Basic Equipment Corporation

reported in 1976(4) SCC 687, has enumerated certain

provisions as to when an unconditionally leave can be granted

or the defendant can be put on term. The said propositions, as

enumerated by the Hon'ble Apex Court in the aforesaid

decision, may be stated as follows:

"a) If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to

C/SCA/19170/2021 ORDER DATED: 16/12/2021

proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.µ On the same lines is the decision of this court in Sunil Enterprises & anr. Vs. SBI Commercial & International Bank Ltd. [(1998) 5 SCC 354] wherein the propositions, as noted herein above, were summed up.'

6. From the contents raised by the defendant in his

application Exh.11, prima facie, it appears that defendant has

no defence or defence is practically moonshine, the Trial Court

has rightly held that the plaintiff is entitled to leave to sign

judgment. As there is no defence raised by the defendant or

triable issue, the plaintiff would be entitled to leave to sign the

judgment and the defendant is not entitled to leave to defend

unconditionally. As per the opinion of this Court, no illegality

or error has been committed by the Trial Court in rejecting the

application of leave to defend Exh.11 by an order dated

30.10.2021.

7. With the above observation, the present petition is

meritless and the same is hereby dismissed.

(B.N. KARIA, J) rakesh/