Gujarat High Court
Mahila Nidhi Gruh Udhyog vs Packaging Solutions on 4 September, 2023
Bench: Devan M. Desai
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C/SCA/8304/2023 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8304 of 2023
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MAHILA NIDHI GRUH UDHYOG
Versus
PACKAGING SOLUTIONS
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Appearance:
DR VENUGOPAL PATEL(7411) for the Petitioner(s) No. 1
MR KUSHAL R SHAH(10585) for the Petitioner(s) No. 1
UNSERVED REFUSED (N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 04/09/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
Heard learned advocate Mr.Venugopal Patel for the petitioner.
2. Notice was issued to the respondent. As the respondent did not
appear despite service of notice, the court issued Rule and passed the
following order on 28.06.2023.
The endorsement on the board shows that notice of the
court issued on 6.6.2023 has been refused by the
respondent. In that view, Rule returnable on 11th July,
2023.
Direct service is permitted.
It is observed that on the returnable date of Rule, even in
absence of respondent, the court shall proceed orders in
accordance with law.
3. Today, endorsement on the Board shows that though served with
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the Rule of the court, none appears for the respondent.
4. The petitioner herein has challenged the order passed by the
Commercial Court, City Civil Court, Ahmedabad in Commercial Civil
Suit No.1017 of 2021 dated 02.02.2023. While passing an order, the
learned trial Court has directed the present petitioner i.e. original
defendant to deposit a sum of Rs.2,62,000/- within 30 days from
02.02.2023, as condition for leave to defend.
5. The short facts of the case are as under:-
5.1 The respondent-original plaintiff has filed a summary suit against
the present petitioner for recovery of Rs.3,71,525/- with 12% interest for
the materials supplied on various dates. The plaintiff had delivered Plastic
Film of Flexible Laminate to the defendant. The petitioner used to make
payment and as on date of the suit, an outstanding amount of
Rs.3,71,525/- remained due and payable by the defendant.
5.2 The plaintiff had issued a legal notice on 19.07.2019 to the
defendant. However, the said notice was neither replied to nor complied
with by the defendant and because of that, the plaintiff had no option but
to file the suit. On appearance of the defendant, plaintiff filed summons
for judgment praying for decree of amount claimed.
5.3 The defendant filed leave to defend application vide Exhibit-12
contending that he has paid Rs.1,10,000/- in installments against the dues
of Rs.3,71,525/-. It is also contended by the defendant that an amount of
Rs.2,61,525/- is due, to be paid by the defendant to the plaintiff.
However, it is further contended by the defendant that, the defendant
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gave three cylinders to the plaintiff amounting to Rs.1,20,000/-, which the
plaintiff had not returned. Hence, deducting the said amount of
Rs.1,20,000/- from Rs.2,61,525/-, amount remained is Rs.1,51,525/-. It is
further submitted by way of defence that the defendant had to purchase
other cylinders and had to spend for purchasing new cylinders.
6. It is evident from the summons for judgment and the averments
made in leave to defend Affidavit that the transactions of selling and
purchasing of Plastic Film of Flexible Laminate is not disputed. When the
transaction is not disputed, what remains for consideration in the defence
and whether the defence raised by defendant - petitioner raises any
triable issue or not.
7. Upon perusal of the summons for judgment, leave to defend
Affidavit and the impugned order, it is found that the plaintiff had issued
a notice dated 19.07.2019 demanding the outstanding amount and the
defendant had not denied the issuance of the said notice. The defendant
had also not given any reply to the said notice and hence, the defence of
buying new cylinders and giving three cylinders amounting to
Rs.1,20,000/- is nothing but an eyewash.
7.1 Further, the defendant has admitted that an amount of
Rs.2,61,525/- remains outstanding. The petitioner has also taken us
through the order impugned, wherein the learned trial Court has
considered the fact that the defendant has admitted his liability of
payment of Rs.2,61,525/- and it is also observed by the learned trial Court
that the defence raised by the defendant in the Affidavit is an
afterthought.
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8. In view of the facts and circumstances, the order impugned does
not require any interference and the same is required to be confirmed.
Thus, the present petition is devoid of merits and the same deserves to be
dismissed.
9. The petition is dismissed accordingly. No order as to costs.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
MANOJ
