M/S Snowcool Systems India Pvt. ... vs M/S Vimal Plast
2022 Latest Caselaw 764 Guj

     C/SCA/12885/2021                             JUDGMENT DATED: 24/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12885 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         Yes

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                   M/S SNOWCOOL SYSTEMS INDIA PVT. LTD.
                                 Versus
                            M/S VIMAL PLAST
==========================================================
Appearance:
MR AJAY L PANDAV(3660) for the Petitioner(s) No. 1
MR NILESH M SHAH(780) for the Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                             Date : 24/01/2022
                             ORAL JUDGMENT

1. Heard learned advocate Mr. A.L. Pandav and learned advocate

Mr. N.M. Shah for the respondent.

2. Rule. Learned advocate Mr. N.M. Shah waives service of rule

for the respondent.

3. By way of this Special Civil Application, the present petitioner/

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

original defendant has prayed to quash and set-aside the impugned

order dated 14.7.2021 passed below Exh.94 by the learned Judge,

Small Cause Court No.9, Ahmedabad, in Summary Suit No. 1328 of

2015, whereby, the rights of the original defendant to produce

original documentary evidence has been closed.

4. The brief facts of the case are that the petitioner is a Private

Limited Company doing business of providing Chilling Plants and

other cooling plants, to various industries in India. That, the

petitioner had placed an order with the present respondent on

8.10.2011. That, on receiving the material, the defendant made the

cash to the TCI Transporter on delivery, a cheque drawn on Punjab

National Bank bearing Cheque No.776618, dated 28.02.2012 for an

amount of Rs.2,49,518/-. That plaintiff Company neither responded

to the defendant Company nor pick-up delivery from the TCI

Transporter at Ahmedabad of rejected goods. That, with malacious

intention, the plaintiff-company deposited that cheque drawn on

Punjab National Bank bearing Cheque No.776618 of Rs.2,49,518/-

for the goods and the defendant company stopped the payment

from the bank. That, the respondent company has fraudulently got

the above cheque dishonored and filed Criminal Complaint- Case

bearing No. 889 of 2012 before the learned Metropolitan Court No.

28, (Negotiable Instruments Act), Ahmedabad. That, under the

provision of Order-XXXVII, Rule -(2) of the Civil Procedure Code, the

present respondent / plaintiff filed summary suit bearing Summary

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

Suit (Old) No. 807 of 2015 on 25.3.2015 in the Court of learned City

Civil Court, Ahmedabad against the present petitioner / defendant

for recovery of amount, which was due on 31.3.2015 and further

interest @ 18% p.a. thereon, till the actual payment and / or

realization with all costs, charges and expenses that may be

incurred from the date of filing of the suit till payment and / or

realization by the plaintiff. That, after further proceeding by both the

parties, the learned Chamber Judge, City Civil Court No. 20,

Ahmedabad passed an order dated 8.10.2015 below Exhs. 12 and

13 and allowed the same and Leave to Defend application also

taken on record. That, the present petitioner / defendant submitted

a leave to defend application vide Exh.15 along with list vide Exh.16

in the suit proceedings. That, in the meanwhile, according to the

amendment made in the Gujarat Civil Courts, Act, 2005, vide

Government Gazette, Extraordinary Part- IV, dated 18.6.2015,

raising the pecuniary jurisdiction of the Ahmedabad Small Causes

Court to Rs.10,00,000/- (Rupees Ten Lacs) and the said amendment

came into force with effect from 2 nd November, 2015 as per the

Government Notification dated 30.10.2015, the learned Chamber

Judge, Court No.23, City Civil Court, Ahmedabad transferred the said

suit to the learned Small Cause Court, Ahmedabad by order dated

19.11.2015, due to present suit being a money suit for recovery of

less than Rs.10,00,000/-. That, the said suit registered with the

learned Small Cause Court on 31.12.2015 bearing Summary Suit No.

1328 of 2015. That, the parties concerned completed their

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

pleadings for hearing in Leave to Defend application and thereafter,

the learned Small Cause Court heard both the side and allowed the

Leave to Defend Application (Exh.15), unconditionally by order

dated 5.10.2017 and also ordered to file reply within 14 days. That,

thereafter, on 25.10.2017, the learned Court was not available and

the suit was adjourned to 15.11.2017 but, on that day, both the

parties were absent, and therefore, the learned trial Court closed

the right of defendant to file reply, and thereafter, the learned trial

Court framed issues vide Exh. 23 on 16.11.2017 and the suit was

fixed for plaintiff's evidence. That, the present respondent / plaintiff

has filed his examination-in-chief on 16.11.2018 and the same was

fixed for cross-examination by the defendant. That, the petitioner /

defendant then cross-examined the plaintiff on 26.3.2019 and

therefore, the plaintiff filed purshis for closing their evidence and

the suit proceedings fixed for defendant's evidence. That, the

present petitioner / defendant submitted examination-in-chief on

2.8.2019 vide Exh. 73 along with list of Documents vide Exh. 72 as

well as application vide Exh. 71 for marking Exhibit to documentary

evidence. That, on 19.10.2019, learned trial court passed an order

below Exh. 71 to exhibit the documents. That, on 22.11.2019, the

present respondent / plaintiff crossed examined the present

petitioner / defendant, and thereafter, same was adjourned for

further cross-examination. That, on 4.12.2019, the present

petitioner produced further evidence through list of documents

(Exh.90) and thereafter the suit proceedings were adjourned to

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

27.12.2020. That, on 27.12.2020, the learned Trial Judge was on

leave, and therefore, the same was adjourned to 16.1.2020, the

learned advocate for the defendant submitted an application

(Exh.91) for some time for production of original documents of

Exh.88 list and the said application (Exh.91) has been rejected by

the learned Trial Court and the learned Trial Judge closed the right

of defendant for production of original documents and also fixed the

matter on 5.3.2020 for final hearing. That, on 5.3.2020, the learned

advocate for the defendant submitted an application (Exh.92) for re-

opening of the defendant's right for production of original evidence

and the learned trial court allowed the said application on condition

to pay cost of Rs.1500/- to the plaintiff. That, due to spread of Covid-

19 in the entire nation and the lockdown was declared since March-

2020, and the proceedings were adjourned. That, according, to

Rojkam, suit was adjourned on 22.7.2020, 3.9.2020, 7.10.2020 and

thereafter on 30.12.2020, 9.2.2021, 25.3.2021, 17.6.2021, 5.7.2021

and on 14.7.2021, and the application (Exh.94) dated 14.7.2021 for

re-opening of defendant's right for production of original documents

(on photocopy produced through Exh.88) was rejected by order

dated 14.7.2021.

5. Learned advocate Mr. A. L. Pandav for the petitioner submitted that the rights of the present petitioner has been closed by the learned Small Cause Court for which learned trial Court has not mentioned any specific reasons as per the provision of law. He also submitted that an application dated 5.3.2020 (Exh.92) of the defendant was for reopening the right for production of evidence by

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

defendant in which learned trial Court allowed the same by order dated 5.3.2020 on condition to pay cost of Rs.1500/- to the plaintiff. He also submitted that the learned trial Court adjourned the matter on 3.4.2020 and at that time, due to Covid-19, lock-down was declared in the entire Country, the matter was adjourned to 22.7.2020, 3.9.2020, 7.10.2020, 30.12.2020, 9.2.2021 and, on 25.3.2021, the matter was adjourned because the learned trial Judge was presided over the appellate Bench and lastly on 14.7.2021 the application Exh.94 has been rejected. He assured that the petitioner will cooperate in the proceedings without asking for adjournments. Making above submissions it is prayed to reopen the right of the petitioner to produce original documentary evidence. He further submitted that the petitioner is ready and willing to pay the reasonable cost that may be imposed by this Court.

6. Learned advocate for the respondent has objected to open the rights of the petitioner to produce original documentary evidence.

7. Regard being had to the submissions advanced by learned advocate Mr. Pandav for the petitioner and also considering the facts and circumstances of the case, it appears that a very short issue is involved in this writ petition i.e. with regard to the rights of the original defendant to produce original documentary evidence.

8. It is submitted by the learned advocate for the petitioner that without going into merits or demerits of the case and in the peculiar facts and circumstances of the case on hand, this petition requires favourable consideration.

9. It is a settled principle of law that a party should not be remained unheard. It is also settled principle of law that adjudication should be on merits rather than on mere technicalities. Further, at

C/SCA/12885/2021 JUDGMENT DATED: 24/01/2022

the cost of repeatation it is reiterated that as per the catena of decisions of the Hon'ble Apex Court, the Courts of law should be slow on random dismissal of the cases.

10. In the backdrop as aforesaid, this writ petition is hereby allowed and the impugned order dated 14.7.2021 passed below Exh.94 by the learned Judge, Small Cause Court No.9, Ahmedabad, in Summary Suit No. 1328 of 2015 is hereby set aside and the right of the petitioner-original defendant to produce original documentary evidence is hereby reopened, with cost, to be paid by the petitioner- original defendant to the respondent-original-plaintiff.

11. The petitioner-original defendant is directed to deposit a sum of Rs.5,000/- (Five thousand only) towards cost before the learned trial Court concerned within a period of two weeks from the date of this order and the respondent-original plaintiff is at liberty to withdraw the same.

10. It is made clear that this order is passed strictly in the peculiar facts and circumstances of the present case and shall not be treated as precedent in any other case.

11. Rule is made absolute to the aforesaid extent. Direct service is permitted through E-mail.

(A. C. JOSHI,J) prk