Gujarat High Court
Mint Inc vs Yash Pankaj Gandhi on 4 September, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/SCA/533/2018 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 533 of 2018
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MINT INC & 2 other(s)
Versus
YASH PANKAJ GANDHI
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Appearance:
ROHAN A SHAH(7497) for the Petitioner(s) No. 1,2,3
RUSHABH H SHAH(7594) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/09/2023
ORAL ORDER
1. Heard learned advocate Mr. Rushabh H. Shah for the petitioners.
2. By way of this petition preferred under Article 227 of the
Constitution of India, the petitioners challenge the order passed
below Exh.27 (Annexure P-3) in Special Summary Suit No.66 of 2015,
whereby while deciding the leave to defend application, the learned
court below ordered to give the bank guarantee of Rs. 15 Lakhs for
preferring the defence.
3. The brief facts of the case are that the respondent herein filed
Special Summary Suit No.66 of 2015 under the provisions of Order 37
of the C.P.C. seeking recovery of Rs.15 Lakhs along with 18 % interest
on the ground that the cheuqe No.662852 issued by the present
NEUTRAL CITATION
C/SCA/533/2018 ORDER DATED: 04/09/2023
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petitioner in favor of the original plaintiff returned unpaid and as
such, the liquidate damage is not paid. The dispute arises from the
agreement between the parties for running the Subway store. It is
said that the original plaintiff was willing to sale the Subway store to
the present petitioners and the cheque of Rs.15 Lakhs was issued
towards the security in addition to the entire sale consideration for
purchase of the Subway store, the cheque, which was given towards
the security, was returned unpaid and has therefore, given cause of
action to the plaintiff for filing the Civil Suit under Order 37 of the
C.P.C. After service of the summons, the plaintiff herein filed the
summons for judgment, pursuant to which, the present petitioners
have filed leave to defend application at Exh.27. The leave to defend
application was decided. The petitioners, who were defendants in the
suit, permitted to defend the suit on condition that they shall deposit
bank guarantee of Rs.15 Lakhs. Being aggrieved by the said decision,
the petitioners have approached this Court by way of present petition.
4. Though served, none remained present for the original plaintiff,
who is arrayed as the respondent herein.
5. Learned advocate Mr. Shah appearing for the petitioners
referring to the judgment of Chlochem Limited vs. Lifeline Industries
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C/SCA/533/2018 ORDER DATED: 04/09/2023
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Limited reported in 2015 (1) GLR 378, more particularly, Para Nos.23
to 25, he would submit that if plaintiff in absence of contract for
interest, has prayed for the interest in relief clause that part will itself
bring the suit out of the summary nature. He would further submit
that in present case, the plaintiff has asked for the relief of the
interest without having any contract between the parties and the said
issue itself is triable issue, and therefore, in view of that the
unconditional leave was required to be granted.
6. Having heard learned advocate Mr. Shah appearing for the
petitioner, the relevant observations made in Para Nos.23 to 25 in the
judgment of Chlochem Limited (supra) reads as under:
23. A perusal of Order 37, Rule 1, sub-rule 2 of the Code
makes it clear that the dispute does not fall in any of the sub-
clauses of sub-rule 2, in view of the claim of interest made by
the petitioner. This alone raises a triable issue. Therefore, in
the view of this Court, unconditional leave to defend has
rightly been granted by the City Civil Court.
24. In Ratilal B. Shah And Co. v. Pari Prafulchandra Kantilal
(supra), the case before the Court was regarding a dispute to
the amount claimed in the account prepared by the plaintiff.
The defendant therein challenged the correctness and
accuracy of the account. As the case of the defendant was
that the account was inaccurate, this Court held that the
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C/SCA/533/2018 ORDER DATED: 04/09/2023
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Trial Court was not justified in granting conditional leave to
defend. The relevant extract of the judgment is reproduced
hereinbelow:
4. In view of the fact that the defendants case is that this
was an "account stated" and that the plaintiff is liable to
render true and correct account, it would be premature to
hold any specific amount being due from the defendants to
the plaintiff. In the circumstances of the case, the learned
trial Judge was not justified in imposing a condition that
the defendants should deposit a sum of Rs. 20,901/- and
allow the defendants to defend on that conditions only. In
this matter, the defendants are entitled to an
unconditional leave to defend because, at this stage, it is
not possible to say as to what amount would be found to
be due and payable by the defendants to the plaintiff. The
defendants are, however, directed to file their written
statement within four weeks from the day on which this
writ is received by the lower Court and the trial Court is
directed to take up this case immediately for hearing and
dispose of the suit not later than 31st March 1983. Writ to
be sent to the lower Court forthwith.
25. The present is also a case where the account prepared
by the petitioner has been seriously disputed by the
respondent, therefore, the principles of law enunciated by
the Court in the above-quoted judgment would apply
squarely to the present case.
7. There is no material on record, which indicates that a contract
has been executed between the parties regarding claim of the
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C/SCA/533/2018 ORDER DATED: 04/09/2023
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interest. Bare perusal of the pleading (Annexure P-1), it is also silent
about the existence of contract regarding the interest. In absence of
the contract between the parties regarding charging of interest on
the principle amount as held hereinabove, it is triable issue. The Court
below, therefore, fell into the patent illegality in passing the
conditional order for permitting the leave to defend.
8. For the foregoing reasons, the present petition succeeds. The
order passed below Exh.27, which is challenged herein is hereby
quashed and set aside. The petitioners are permitted to defend the
suit unconditionally. The petitioners shall file their written statements
within a period of 30 days from today. Interim relief stands
discontinued. Proceedings of summary suit shall proceed accordingly.
(J. C. DOSHI,J)
SUYASH SRIVASTAVA
