M/S. Ghanshyam Packaging vs M/S. Shriraj Enterprise
2023 Latest Caselaw 454 Guj

      C/SCA/25736/2022                                ORDER DATED: 13/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 25736 of 2022

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         M/S. GHANSHYAM PACKAGING
                   Versus
          M/S. SHRIRAJ ENTERPRISE
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Appearance:
MR ARJUN M PADHIYAR(10586) for the Petitioner(s) No. 1
MR KUSHAL R SHAH(10585) for the Petitioner(s) No. 1
HARSHANG H PATEL(7349) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                          Date : 13/01/2023

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present petition under Articles 226 & 227 of the Constitution of India, the original defendant has challenged the order dated 10 th November, 2022 passed by the learned Commercial Court at City Civil Court, Ahmedabad in Commercial Civil Suit no.929 of 2021 by which the learned Commercial Court at City Civil Court, Ahmedabad has permitted to defend the suit on a condition that defendant deposit a sum of Rs.3,00,000/- with the Registry within the period of 30 days from the date of the order i.e. 10 th November, 2022.

2. The short facts arising out of the record are as under : 2.1 That the present respondent by a Commercial Civil Suit

C/SCA/25736/2022 ORDER DATED: 13/01/2023

no.929 of 2021 filed under order XXXVII of Code of Civil Procedure, 1908 has sought decree of Rs.5,51,527/- with running interest @ 18% from the date of filing of the suit. In response to summons for judgment, the present appellant - original defendant filed leave to defend application denying the contentions raised in the plaint. The learned Commercial Court Judge, after considering the case on hand, granted leave to defend on a condition as stated herein above, hence, the present petition.

3. The original plaintiff has filed caveat and therefore, matter was initially heard by the Co-ordinate Bench on 23 rd December, 2022 and due to paucity of time, the matter was adjourned for today and trial Court was directed not to proceed in connection with the aforesaid suit.

4. Mr. Arjun M. Padhiyar, learned advocate appearing for the petitioner would submit that the trial Court has committed an error in passing the order. It is submitted that the accounts were settled between the parties way back in the year 2018 and suddenly by relying on certain invoices, which have been produced on record of 2013, against which the suit has been filed. He would submit that there were cordial relationship between the parties and therefore, cheques were signed by the petitioner were handed over to the present respondent, which have been misused by them, which were deposited in the bank in the year 2020 and this contention was specifically raised, which has not been properly dealt with by the trial Court. He therefore would submit that the petition be allowed.

C/SCA/25736/2022 ORDER DATED: 13/01/2023

5. On the other hand, Mr. Abhisst Thaker, learned advocate appearing for the respondent would submit that the parties were in business since years together and time and again the payments were made through cheques, which were deposited in the bank.

6. With regard to the invoices for the goods, which were delivered in the year 2013, the defendant has assured that the amount shall be paid. Ultimately, cheques were handed over to the respondent, which were deposited and the same has returned without being honoured. He would further submit that the criminal complaint for the same under the provisions of Negotiable Instruments Act, has also been filed against the present petitioner. He would submit that in such circumstances, no interference is required by this Court under Article 227 of the Constitution of India.

7. We have heard the learned advocates for the respective parties.

8. Prima facie, it appears that four cheques, each of Rs.25,000/-, which were issued at the instance of petitioner, which were deposited in the month of September, 2020, which were returned without being credited in the account of the present respondent - plaintiff. Hence, notices were issued and complaint under the Negotiable Instruments Act has been filed.

On query, learned advocate for the petitioner would submit that there is no writing regarding the settlement

C/SCA/25736/2022 ORDER DATED: 13/01/2023

between the parties and dispute was settled between the parties way back in the year 2018. If it had been settled, the cheques which allegedly handed over to the present respondent - plaintiff could have been returned back, but there is no such record produced by the original defendant on record at this stage.

9. In view of the above fact, we are not inclined to entertain the present petition. Accordingly, the same is dismissed. Time to deposit the amount is granted upto 10th February, 2023.

(A.J.DESAI, J.)

(RAJENDRA M. SAREEN, J.) AMAR RATHOD...