Gujarat High Court
Mr. Vimal Parasmalji Kothari vs Mr. Pritam Singh on 11 April, 2025
NEUTRAL CITATION
C/SCA/4323/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4323 of 2025
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MR. VIMAL PARASMALJI KOTHARI
Versus
MR. PRITAM SINGH
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Appearance:
NIYATI D CHAUHAN(9082) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/04/2025
ORAL ORDER
1. Heard learned advocate Ms. Niyati D. Chauhan for the
petitioner.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief.
"A. That the Hon'ble Court be pleased to issue a writ, order or
direction quashing and setting aside the order dated 20.07.2024
passed in Civil Miscellaneous Application no. 29 of 2020;
B. That the Hon'ble Court be pleased allow the petitioner herein to
withdraw the amount which is deposited by the respondent in
connection with order dated 27.01.2020;
C. For such other and further reliefs as the Hon'ble Court may
deem just and proper in the facts and circumstances of the case."
NEUTRAL CITATION
C/SCA/4323/2025 ORDER DATED: 11/04/2025
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3.0 The short controversy which are arise in the matter is
about the entitlement of the petitioner to receive the
amount of Rs. 30,000/- so deposited by the respondent
before the trial Court once decree is passed in his favour.
3.1 The petitioner herein happens to be plaintiff of
Summary Suit No. 222 of 2019 instituted by him against
respondent herein, which came to be decreed by the trial
Court vide its judgement/decre dated 20.12.2023.
3.2 It appears that judgment and decree passed by the trial
Court against the respondent was never questioned by him
before the higher Court. It further appears that during the
pendency of the suit proceeding, the respondent has
deposited a sum of Rs. 30,000/- with the trial Court.
3.3 In view of the aforesaid facts, the petitioner- plaintiff
has requested the trial Court to allow the petitioner to
withdraw such deposited amount by respondent lying with
it.
3.4 It further appears that the trial Court vide its order
dated 20.07.2024 has rejected such request on premise that
plaintiff has not disclosed in his application as to whether
the respondent has challenged the decree before the higher
NEUTRAL CITATION
C/SCA/4323/2025 ORDER DATED: 11/04/2025
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Court.
4. Being aggrieved and dissatisfied with the impugned
order, the petitioner has preferred the present writ
application.
5. Today, when the matter was called out, learned
advocate Ms. Chauhan for the petitioner has submitted an
affidavit of the petitioner sworn on 11.04.2025, wherein, it
has been stated that respondent has not questioned the
judgment and decree passed by the trial Court before any
higher Court and it attained finality. It has been further
undertaken by the petitioner that on receipt of the amount
of Rs. 30,000/- and or any other amount as an interest
accrued thereon, in future, if any Court will order to refund
this amount in a case where respondent will be able to
challenge the decree which will be set aside in future, the
petitioner will refund such amount to the respondent.
6.0 Learned advocate Ms. Niyati Chauhan for the petitioner
would submit that as per knowledge and information of the
petitioner, till date, the respondent has never questioned
the judgement and decree dated 20.12.2023 passed by the
trail Court in the appellate Court and thereby, it attained
finality. She would further submit that the amount of Rs.
NEUTRAL CITATION
C/SCA/4323/2025 ORDER DATED: 11/04/2025
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30,000/- which has been deposited by the respondent during
the pendency of Summary Suit, in view of the decree, the
same is required to be paid to the decree holder - plaintiff.
6.1 Learned advocate Ms. Chauhan would further submit
that the trial Court has erroneously and on wrong premise
has rejected the application of the petitioner. She would
request this Court to allow the present writ application.
7. Ordinarily, this Court would have issued notice to the
respondent before passing any final order in the matter but
considering the fact that the judgement and decree is passed
by the trial Court on 20.12.2023 which appears to have not
been challenged by the respondent- defendant before any
higher Court as evident from the affidavit filed by the
petitioner before this Court and as such there is nothing
contrary on the record.
8. There is a reason to believe that respondent might not
has challenged such decree before the higher Court.
Moreover, considering the amount involved in the matter is
hardly Rs. 30,000/- which has already been deposited by the
respondent- defendant herein which is lying idle with the
trial Court, in such scenario, without issuing any notice to
respondent in this matter, I would like to pass the following
NEUTRAL CITATION
C/SCA/4323/2025 ORDER DATED: 11/04/2025
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order :-
(i) The petitioner-plaintiff is hereby permitted to
withdraw the amount of Rs. 30,000/- with interest accrued
thereon so deposited by the respondent- defendant with the
trial Court in a Summary Suit No. 222 of 2019.
(ii) The trial Court is hereby directed to pay the aforesaid
amount in favour of the plaintiff- petitioner by taking
appropriate undertaking from the plaintiff to the effect that
any a case where defendant - respondent herein file any
appeal before the higher Court and ultimately succeed, the
plaintiff will refund back such amount to the defendant or to
deposit with the trial Court as may be directed by the Court
concerned.
(iii) Such exercise may be completed by the trial Court
within a period of 15 days from the date of receipt of copy of
this order.
(iv) Any such amount received by plaintiff will be considered
as receipt of part of decreetal amount and will be adjusted
against decreetal amount thereby, for balance amount, it is
open for plaintiff to file execution against respondent -
defendant.
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C/SCA/4323/2025 ORDER DATED: 11/04/2025
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(v) Registry is hereby directed to send copy of writ of this
order to the respondent and if he is aggrieved by this order,
it is open for the respondent to approach this Court within a
period of 90 days from the date of receipt of copy of this
order by way of an appropriate application for recalling this
order.
9. With the aforesaid observations, discussions, reasons
and directions, this present writ application is hereby partly
allowed. Consequently, order dated 20.07.2024 impugned in
present writ application is hereby quashed and set aside and
accordingly, Civil Miscellaneous Application No. 29 of 2020
filed by plaintiff is hereby allowed to the aforesaid extent.
(MAULIK J.SHELAT,J)
SALIM/
