Gujarat High Court
Sonali Bank Ltd vs Nandan Exim Ltd on 30 September, 2021
Bench: B.N. Karia
C/SCA/10445/2021 ORDER DATED: 30/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10445 of 2021
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SONALI BANK LTD.
Versus
NANDAN EXIM LTD.
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Appearance:
MR MAULIK J SHELAT(2500) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 30/09/2021
ORAL ORDER
1. The petitioner, by way of present petition under Article
226 and 227 of the Constitution of India and under Order 37
of the Code of Civil Procedure challenged the order dated
31.12.2018 passed below Exhs. 14 and 16 in Summary Suit No.
2264 of 2011 and further judgment / order / decree passed in
the suit.
2. Heard learned advocate Mr. Maulik J. Shelat for the
petitioners. It appears that suit was filed by the plaintiff for
decree for the sum of US $ 60,234.99 i.e. Rs.27,47,348/- along
with interest thereon at the rate of 18% from 16.10.2010 till
its realization against respondent Nos. 1 to 3 under Order 37
of the Code of Civil Procedure. The plaintiff vide application
Exh.14 taken out the summons for judgment and prayed to
pass a decree against defendant Nos. 2 and 3. Defendant Nos.
2 and 3 appearing through advocate filed leave to defend at
Exh.16 denying the summons for judgment. The plaintiff also
filed an affidavit in rejoinder reiterating the submissions. The
C/SCA/10445/2021 ORDER DATED: 30/09/2021
learned Chamber Judge allowed the summons for judgment
and leave to defend the suit was refused to the defendant Nos.
2 and 3. Both the applications were disposed of accordingly.
The suit was ordered to be decreed as prayed for in summons
for judgment against defendant Nos. 2 and 3. Therefore,
present petitioners have preferred this petition challenging the
impugned order dated 31.12.2018 under Article 226 and 227 of
the Constitution of India.
3. Honourable Apex Court in case of Ajay Bansal vs. Anup
Mehta & Ors. reported in AIR 2007 SC 909 in para 13, 14 and
15 observed as under;
"13. Ordinarily, an application under Article 227 of the
Constitution of India would not be maintainable where an appeal
lies. An appeal lay from the decree under Section 96 of the Code.
When an appeal could be filed, ordinarily, an application under
Article 227 of the Constitution of India would not be entertained.
14. A decree passed subsequent to the refusal of leave to defend
could either be under Order XXXVII Rule 3(6) of the Code or it
could be based on the affidavit evidence on the side of the plaintiff
and the documents produced or even based on oral evidence
formally proving, say, the execution of a promissory note by the
defendant. It may not be proper or necessary to apply the theory of
"dependent order" in such circumstances. For one, the theory may
not apply. Even if this Court were to set aside the order of the
court below and give the defendant leave to defend the suit, the
decree that is passed may not go automatically. It may have to be
set aside. Secondly, the defendant can always go to the court which
passed the decree and move under Rule 4 of Order XXXVII of the
Code to reopen the decree.
The theory of "dependant order" may not apply in a case of this
nature because even if this Court were to set aside the order
refusing leave to defend, the decree subsequently passed may not
fall by itself. It has still to be set aside either by resort to Order
XXXVII Rule 4 or by way of an appeal, or by some other mode
known to law. In a given case like the present one as it may not be
proper to interfere with the decree merely because in an appeal
C/SCA/10445/2021 ORDER DATED: 30/09/2021
against an order refusing leave to defend, this Court is inclined to
take a different view. [See V.S. Saini & Anr. v. D.C.M. Ltd., AIR
2004 Delhi 219.]
15. The defendant in such a case can also be left to appeal
against the decree and therein challenge the order refusing leave to
defend in terms of Section 105(1) of the Code."
4. In the aforesaid legal position that against decree passed
by the Civil Court under Order 37 of the Code of Civil
Procedure, petition under Article 226 of the Constitution of
India would not be maintainable whereas appeal lies.
Therefore, the present petition is disposed with a liberty to the
petitioner to challenge the judgment and decree passed by the
learned Chamber Judge, City Civil Court, Ahmedabad dated
31.12.2018 as provided under relevant provisions of Code of
Civil Procedure.
4.1 It is made clear that this Court has not examined the
merits of the case.
(B.N. KARIA, J)
DRASHTI K. SHUKLA
