1. The petitioner herein is the respondent of Summary Suit No.1 of 2011, preferred by present respondent for recovery of Rs.6,48,704/- under Order-37 of the Code of Civil Procedure.
2. The summons for judgment was taken-out in the said suit. After the service to the petitioner herein, the petitioner herein filed the application for leave to defend, seeking unconditional leave to defend the said suit.
3. Learned 6th Additional Senior Civil Judge, Surat on bi-parte hearing allowed the application Exh- 13, on condition to deposit 50% amount of the principal amount of the suit, within three months from the order dated 09.08.2011.
4. Aggrieved by such an order, this petition is preferred under Article 227 of the Constitution of India, raising various grounds against such order of grant of conditional leave and prayer is made for quashing and setting aside such order.
5. Learned advocate for the petitioner Mr.U.M.Panchal submitted that the order is illegal. There has been no transaction with the respondent-firm, at any stage. He urged that the Court should consider total production as also the bill of electricity of respondent-firm. To bring home this point, it is submitted that such a huge amount of supply to the present petitioner could not have been possible. Moreover, it nowhere emerges on record as to under which mode of communication, the supply is made. He further sought to rely upon financial statements and Audit Report of Vasu Synthetics to show that no transaction has been made by the petitioners or with any other sister concern and with Vayudut Synthetics. He needs to file counter-claim as per his accounts.
6. He has relied upon the judgment of the Apex Court rendered in case of Mechalec Engineers & Manufacturers Vs. Basic Equipment Corporation reported in AIR 1977 SC 577, especially on paragraph No.8 of the judgment, where the Apex Court reproduced the proposition laid down by Calcutta High Court in case of Smt.Kiranmoyee Dassi Vs. Dr.J.Chatterjee reported in (1945)49 Cal WN 246.
7. According to the learned advocate his case would fall under clauses 'A' and 'B', and therefore, unconditional leave ought to have been granted by the Court below.
8. Per-contra, learned advocate Mr.Majmudar appearing for respondent-original plaintiff urged that the defence put forward by the petitioner is a complete moonshine. The trial Court instead of passing final decree, in favour of respondent herein, granted conditional leave, which is the discretion of the Trial Court and it may not be interfered by this Court under Article 227 of the Constitution of India. He further pointed out from the documentary evidences that there has been consistent supply of goods whereunder the petitioner has put his signature and seal. There is voluminous evidence to establish all the transactions for which no amount has been paid to the respondent for a long time. He urged the Court to dismiss the petition, relying upon the judgment of this Court in case of Greengold Timber Ltd. Vs. Shipra Ocean Trade Ltd. reported in 2008(1) GLR 251, especially on paragraph 9. There was denial of receipt of goods. In the instant case, according to the learned advocate for the respondent, the Court was to strike the balance between the parties and therefore, it was necessary to direct deposit of some amount.
9. It would be relevant to reproduce the proposition laid down by Calcutta High Court and produced in case of Mechalec Engineers & Manufacturers (Supra) in Paragraph No.8, which is quoted as under:-
“8. In Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253):
"(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to. prove a defence".”
10. In light of the well laid down principles right from the year 1945, if the order impugned is examined, the trial Court has noted from the evidence produced before it that the goods were supplied to the petitioner-firm. It also further noted the signature of the petitioner herein and the seal of Shivshanker Textiles. The Court was of the opinion that the dispute raised by present petitioner is not genuine. The Court further elaborated the fact that no account detail was produced, alongwith the leave to defend application. Without there being any cogent ground for so doing, the Court has almost treated defence to the present petitioner as a moonshine. However, using his discretion he permitted filing of written statement on production of 50% principal amount, within 90 days from the date of order.
11. There is no jurisdictional error that could be pointed out by the petitioner herein. There is no error apparent on the face of the record nor this order impugned, causes grave injustice to the petitioner, which would require interference from this Court.
12. It emerges from the record that the trial Court has examined all the documents and has also taken into consideration the defences raised and thereafter, for availing appropriate opportunity as demanded, it was necessary to direct deposit of 50% amount. In the circumstances mentioned herein above, this petition, being devoid of any merits, deserves rejection. While so doing, the petitioner herein is granted time of 8(eight) weeks to deposit the amount as has been directed by the trial Court. In the above terms, the petition is disposed of.
..mitesh..
[Ms.SONIA GOKANI, J.]