Gujarat High Court
Prem Harishbhai Bachkaniwala vs Kanishka Prints Private Limited on 1 October, 2021
Bench: B.N. Karia
C/SCA/12953/2021 ORDER DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12953 of 2021
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PREM HARISHBHAI BACHKANIWALA
Versus
KANISHKA PRINTS PRIVATE LIMITED
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 01/10/2021
ORAL ORDER
1. By way of this petition, petitioner has challenged the
order dated 05.07.2021 passed by the learned 3 rd Additional
Senior Civil Judge, Surat on application below Exh.10 in
Summary Suit No.91 of 2019 and requested to allow the
application Exh.10 unconditionally in the interest of justice.
2. Considering the issue involved in the present petition and
the amount claimed by the petitioner in the suit filed by him
was Rs.3,55,239/- along with interest of Rs.35,523/-, the trial
Court granted conditional leave to defend to the present
petitioner by depositing 50% cheque amount in the Court. As
the issue is very narrow and small, no notice is required to be
issued to the respondent.
3. Heard learned advocate appearing for the petitioner. He
submits that the impugned order passed below Exh.10 directing
the petitioner to deposit 50% of the amount of the cheque, is
illegal, arbitrary, perverse and contrary to the facts. It is
C/SCA/12953/2021 ORDER DATED: 01/10/2021
further submitted that the trial Court has considered that there
are triable issues in the suit. However, conditional permission
was granted which has committed an error. Referring to the
bill issued by the plaintiff, it is submitted that there was no
written contract to pay the interest in the suit. That without
any condition of interest payable to the plaintiff on the
principle amount, no unconditional leave to defend was
required to be granted to the petitioner. In support of his
argument, learned advocate for the petitioner is relying upon a
decision of Division Bench of this Court in Special Civil
Application No. 6350 of 2017. It is further submitted that the
trial Court has relied upon the cheques issued by the petitioner
which was fraudulently received by the plaintiff. Hence,
learned advocate for the petitioner has requested to quash and
set aside the impugned order.
4. Having gone through the facts of the present and
submissions made by the learned advocate for the petitioner, it
appears that in the suit filed by the plaintiff, amount of
Rs.3,55,239 with interest at the rate of 24% per annum i.e.
Rs.35,523/- totaling to Rs.3,90,762/-, was claimed by the
plaintiff. The plaintiff has also produced the bill along with the
suit totaling to Rs.3,55,239/-. There is no disclosure of any
interest to be paid by the defendant. It also appears that
before filing of the suit, legal notice was also issued by the
plaintiff to the defendant in respect of the supply of the goods
and bill issued to the defendant. It is also disclosed in the
notice that in connection with the business transaction, a
cheque was issued by the defendant dated 16.08.2016 for the
sum of Rs.3,55,239/- issued on Associate Co-Operative Bank
Limited, Salabatpura, Surat. As per the contentions of the
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notice, the cheque issued by the defendant was returned back
by the bank authority on account of insufficient fund. It also
appears that reply to the notice was also issued by the
petitioner through his advocate denying any business
transaction as averred by the plaintiff in the notice. In respect
of the cheque, it was stated that the said cheque was
fraudulently obtained by the plaintiff and was misused, for
which, the defendant would take appropriate legal steps
against the plaintiff.
5. It also appears that second notice was also issued by the
plaintiff on 07.01.2019 specifying the bill numbers of the
materials supplied to the defendant as well as the cheques
issued by the defendant on 16.08.2018 for the amount of
Rs.3,55,239/-. The defendant also issued a reply on 20.01.2019
through his advocate, denying to pay an amount of
Rs.3,55,239/- along with interest of Rs.35,523/-, totaling to
Rs.3,90,762/-. Other averment made by the plaintiff in the
notice were also denied.
6. Learned trial Court, considering the cheque issued by the
defendant in favour of the plaintiff passed the order granting
conditional leave to defend the suit by depositing 50% amount
of cheue. It appears from the record that bill was issued by
the plaintiff of Rs.3,55,239/- only. The defendant has denied
any transaction between the plaintiff and the defendant or
receiving any material from the plaintiff as well as liability to
pay principle amount or interest amount. The question of
issuance of cheque fraudulently may be treated as triable issue
but so far as bill amount is concerned there cannot be any
question. However, trial Court has granted permission to leave
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to defend in favour of the defendant. The division bench of
this Court granted leave to defend unconditionally as per the
facts of the case that there was a tri-party agreement as well
as the other issue in the cited case that plaintiff has not
averred that no relief which does not fall within the ambit of
Order 37 Rule 1 or 2 for the Code of Civil Procedure is being
claimed in the plaint. Considering the legal issue raised in the
cited case and tri-party agreement in the month of July, 2012
the Division Bench was pleased to grant unconditional leave to
defend by quashing the order of depositing 50% amount to
grant leave to defend. Considering the facts of the case, this
judgment would not be helpful to the present petitioner. When
the trial Court has considered that the cheque was issued by
the defendant in favour of the plaintiff, prima facie there is no
error committed by the trial Court. Therefore, the present
petition is dismissed in limine.
(B.N. KARIA, J)
DRASHTI K. SHUKLA
