Gujarat High Court
R N Technocast Private Limited vs A R Enterprise Through Its Partner ... on 21 November, 2025
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 512 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 512 of 2025
==========================================================
R N TECHNOCAST PRIVATE LIMITED & ORS.
Versus
A R ENTERPRISE THROUGH ITS PARTNER MOHAMMAD ARIF
MOHAMMAD HANIF MAKANI
==========================================================
Appearance:
MR PRATIK Y JASANI(5325) for the Appellants
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/11/2025
ORAL ORDER
1. Parties to the suit are mentioned in this order as per
their original status before the learned trial Court.
2. The plaintiff - A.R. Enterprise through its proprietor
Mohammad Arif Mohammad Hanif Makrani filed Special Civil
Suit No.69 of 2011 for recovery of Rs.5,29,546/- together with
interest against the defendant - R.N. Technocast Pvt. Ltd. and
its Directors inter alia on the ground that the plaintiff has sold
steel and scrap to the defendant, who is dealing in the
business of investment casting. The goods sold to the
defendant was amounting to Rs.3,55,596/- during the time
period commencing from 24.7.2008 onwards. The plaintiff
has supplied goods to the defendant on credit. The amount of
goods sold was not paid to the plaintiff by the defendant
except Rs.50,000/- paid by way of cheque, but returned
unpaid, resulted into filing of Criminal Case No.5232 of 2009
under the provisions of the NI Act. However, the case was
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
brought as Rs.50,000/- was paid in a cash to the plaintiff. In
nutshell, the plaintiff has filed the suit for recovery of
Rs.3,05,586/- from the defendant along with interest at 34%
with cost. The suit was decreed by the judgment and decree
dated 2.10.2018 by the learned 3 rd Addl. Senior Civil Judge,
Bhavnagar.
2.1 Being aggrieved by the aforestated judgment and
decree, the defendant of the suit preferred Regular Civil Suit
No.186 of 2022 before the learned Principal District Judge,
Bhavnagar u/s 96 of the Code of Civil Procedure, 1908 (in
short "the Code". The learned appellate Court after
examining point of determination and upon rival submissions
of both the parties, was pleased to dismiss the Regular Civil
Appeal by judgment and decree dated 1.7.2025.
2.2 Being further aggrieved by the concurrent findings of
fact arrived by learned Courts below, the defendant of the suit
preferred this second appeal u/s 100 of the Code on various
grounds stated in the appeal memo framing following
questions of law as substantial questions of law.
"(i) Whether in the facts and circumstances of the
case, the Hon'ble Courts below erred in not
appreciating the fact that the respondent herein,
being the plaintiff, was required to stand on its own
legs to prove its case and weakness of the defendants
cannot give any premium to the plaintiff who has to
independently prove the facts pleaded in the plaint?
(ii) Whether in the facts and circumstances of the
case, the Hon'ble Courts below have rightly
appreciated the provisions of the Contract Act as also
the Code of Civil Procedure, 1908 and more
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
particularly, Order XVIII thereof and has rightly
appreciated the deposition of the respondent herein,
who admitted that he has no proof to show that the
goods ever reached the appellants?
(iii) Whether in the facts and circumstances of the
case, the Hon'ble Courts below were right in holding
that the Suit is well within the period of limitation?
(iv) Whether in the facts and circumstances of the
case, the Hon'ble Lower Appellate Court has
committed an error by following the procedure
contemplated under Order XLI Rule 31 of the Code of
Civil Procedure, 1908 by formulating proper points
for determination?
(v) Whether in the facts and circumstances of the
case, the Hon'ble Courts below were right in
entertaining the Suit/appeal more particularly, when
the issue involved in the Suit was pertaining to a
commercial dispute and the Suit ought to have been
tried by the Commercial Court under the provisions
of the Commercial Courts Act, 2015, which was
promulgated on 23.10.2015?
(vi) Whether the Hon'ble Courts below have erred in
passing the impugned judgment and orders in the
given facts and circumstances of the case?
(vii) Whether the Hon'ble Courts below erred in not
verifying the evidence in its proper perspective?"
3. Learned advocate Mr. Jasani appearing for the
defendants to admit this appeal, mainly would argue that the
learned Courts below have committed serious error in
decreeing the suit o the plaintiff, which was not supported by
any documentary evidence except the bills. He would further
submit that the account book or ledger were not proved to
establish that the plaintiff has sold goods worth Rs.3,05,596/-
to the defendants and the said amount is due against the
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
defendants. He would further submit that the learned Courts
below have also committed serious error in relying upon
written statement of the defendant to believe that it was a
case of the defendants that goods of inferior quality was sold
to the defendant, but it does not prove that goods in tune of
Rs.3,05,596/- was sold to the defendant. He would further
submit that in fact, the written statement has been totally
misread by the learned Courts below. Moreover, the evidence
to that effect has also been misread by the learned Courts
below to believe that the plaintiff has proved its case. He
would further submit that in a case under the NI Act filed
against the defendants, they have paid Rs.50,000/-, which was
payment for full and final settlement between the parties. He
would further submit that there is only one set of transaction
between the parties between the year 2007 and 2011 and no
other transaction ever took place between the parties and
therefore, payment of Rs.50,000/- to drop the Criminal Case
was full and final payment. However, the learned Courts
below did not consider this issue in its true perspective and
therefore, both the learned Courts below have committed
serious error.
3.1 One more argument is canvassed by learned advocate
Mr. Jasani that the dispute between the parties pertains to
commercial nature and therefore, the suit was required to be
referred to the Commercial Court under the Commercial
Court Act. However, such submission does not impress the
Court on the ground that this submission is first time raised in
the second appeal. The defendant who has filed the first
appeal, has not raised such contention in the first appeal nor
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
before the learned appellate Court. It is not the case of the
defendant that the learned civil Court has no inherent
jurisdiction to decide the issue raised in the suit.
4. In arguendo, so, learned advocate for the defendants
would submit that the aforesaid questions arose and they are
substantial questions of law.
5. The learned appellate Court has fixed the issue at
Exh.14 as under:-
"1. Whether the suit of the plaintiff was time barred
by period of limitation ?
2. Whether the goods which were received by the
defendants were of inferior quality ?
3. Whether the entire dispute was amicably settled
between the parties through a withdraw pursis which
is produced at Ex.29 ?
4. Whether the impugned judgment and decree,
dated 20-10-2018, passed by the Ld. 3rd Additional
Senior Civil Judge, Bhavnagar in Sp.CS No.69 of
2011, is required to be interfered with ?
5. What order and decree?"
6. After permitting both the parties to lead evidence, it was
revealed that the learned appellate Court answered issue
No.1 and 3 in affirmative, issue No.2 in negative and issue
No.4 in partly affirmative and issue No.5 as per final order
and passed decree to the tune of Rs.3,05,596/- to be
recoverable amount with 6% interest from the date of suit till
realization.
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
7. The findings of the learned trial Court is largely based
upon the written statement filed by the defendant at Exh.11,
whereby the defendant admitted supplying of the goods,
however, raised contention that the goods were not as per the
specified quality. The learned appellate Court in para 12 of its
judgment and decree, detailed that though the defendant
raised contention of supplying inferior quality goods, did not
narrate any detail that how the goods supplied to him is of
inferior quality nor has adduced any other evidence
supporting the defence of supplying inferior quality goods vis
laboratory expert opinion. Thus, such written statement as
well as admission made by the defendant in his deposition
lead the learned Courts below to believe that the plaintiff has
proved the goods supplied worth of Rs.3,05,596/-. The
defendant since did not quarrel about supplying of goods in
absence of any convincing evidence, that the good supplied is
of inferior quality, the defendant is responsible to pay the
amount of goods supplied. The learned appellate Court
reexamined the issue along with the issue that payment of
Rs.50,000/- is full and final payment towards the outstanding.
While assailing the issue, on internal page 11 of the judgment
and decree of the learned appellate Court, the pursis at
Exh.19 is produced in evidence and taken the content recital
thereof to believe that the amount of Rs.50,000/- was paid
towards the dishonoured cheque. In the aforesaid
circumstances, the submission of learned advocate Mr. Jasani
that the plaintiff independently failed to prove that an amount
of Rs.3,05,596/- is outstanding does not survive. The plaintiff
was not required to prove further once the defendant
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
admitted supply of goods, but unsuccessfully came out with
the defence that the goods of inferior quality was supplied.
According to this Court, the secnod appeal is one more dice
thrown in the gamble.
8. Let refer section 100 of the Code as under:-
"(1) Save as otherwise expressly provided in the body
of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial
question of law involved in the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing
of the appeal, be allowed to argue that the case does
not involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves
such question.]"
9. The High Court in order to admit second appeal is
required to be satisfied that substantial questions of law is
involved in the case and having so satisfied has to formulate
that question. Existence of a substantial question of law is
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
sine-qua-non for the exercise of jurisdiction under the
provisions of section 100 of the Code. The second appeal does
not lie on the ground of erroneous findings of facts based on
appreciation of the relevant evidence. [See: Union of India v.
Ibrahim Uddin, (2012) 8 SCC 148].
10. In Govindaraja v. Mariamman, AIR 2005 SC 1008,
the Hon'ble Apex Court held that the scope of exercise of the
jurisdiction by the High Court in second appeal under section
100 is limited to the substantial question of law. To be a
substantial question of law it must be debatable, not
previously settled by law of the land or a binding precedent
and answer to the same will have a material bearing of the
party before the Court.
11. Recently, the Hon'ble Apex Court in case of Gurbachan
Singh (Dead) Through Lrs Versus Gurcharan Singh
(Dead) Through Lrs And Others, 2023 (20) SCC 104, in
para 7, 14 and 15 held as under:-
"7. The parameters of an appeal under Section 100,
CPC passing muster are well established. The section
itself dictates that such an appeal shall only be
maintainable when the case involves a substantial
question of law or that the appellate decree has been
passed ex parte. the latter, obviously is not the case.
This court has, in a multitude of decisions, expounded
on what may be termed as a substantial question of
law to satisfy the requirements of section 100.
14. The principles of law cited herein may be
undoubtedly good law, but, however, in the
considered view of this court, they do not hold in the
case put forward by the Appellant. A perusal of the
NEUTRAL CITATION
C/SA/512/2025 ORDER DATED: 21/11/2025
undefined
witness statements of DW-3 as duly recorded by the
High Court, (the court also relies on the cross
examination portions of DW-4 although the same do
not form part of the record before this court.) shows
that father of the Appellant had indeed partitioned
the property during his lifetime. In such situation
selling a part of his share in an undivided property, is
a question that does not arise. Reliance on Shyam
Sunder (supra) does not support the case of the
Appellant as there is nothing on record to reflect any
effort having been made by him to substitute himself
in place of the Respondents in buying the 4 marlas of
land from Faqir Singh in order to keep a stranger,
namely Gurcharan Singh from entering into family-
owned property. Had the Appellant made any such
effort and the same would be reflected from record,
then it could have been argued that he has a right to
exclude the Respondents.
15. As already noted above, another ground of
objection taken by the Appellant is the fact of the
impugned judgement entering into a reappreciation
of evidence. While it is true that ordinarily, in second
appeal, the court must not disturb facts established
by the lower court or the first appellate court.
However, it is also equally well recognised that this
rule is not an absolute one or in other words, it is not
a rule set in stone."
12. Applying the aforesaid ratio to the facts of the present
case, no case is made out for admission of the second appeal.
Accordingly, second appeal fails and stands dismissed at
admission stage.
13. Consequently, CA does not survive and stands disposed
of accordingly.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
