1. By way of this petition under Article 227 of the Constitution of India, petitioner - original defendant seeks to challenge judgment, order and decree dated 21.04.2005 passed by City Civil Judge, Court No.19, City Civil Court, Ahmedabad in Regular Summary Civil Suit No.3326 of 2003, whereby, the learned City Civil Judge rejected the application Exh.10 preferred by the petitioner herein - original defendant praying for leave to defend the summary suit under the provisions of Order 37 of Code of Civil Procedure, 1908.
2. Facts relevant for the purpose of deciding this petition can be summarized as under :
2.1 Respondent
- original plaintiff preferred Summary Civil Suit No.3326 of 2003 in the City Civil Court at Ahmedabad for recovery of Rs.3,90,750/- under the provisions of Order 37 of Code of Civil Procedure, 1908.
2.2 It appears that respondent - original plaintiff paid a sum of Rs.3 lakhs to the petitioner - original defendant by way of two cheques bearing No.836838 and No.382114 for Rs.1,50,000/- each drawn on Union Bank of India, C.G. Road Branch, dated 28.03.2002. This amount was paid by respondent - original plaintiff to the petitioner - original defendant by way of a deposit. As per the agreement, petitioner - original defendant was to pay an interest to the respondent - original plaintiff @ 18% and the amount of deposit was to be returned within 45 days.
2.3 It appears that respondent - original plaintiff demanded the amount from the petitioner - original defendant along with the interest accrued on the same and petitioner accordingly issued a cheque of Rs.3 lakhs in favour of respondent dated 28.02.2003 drawn on Bank of Maharashtra, Navrangpura Branch bearing No.439814. At the time of delivery of the cheque to the respondent - original plaintiff, the petitioner - original defendant assured the respondent - original plaintiff that the amount towards interest would be paid at a later stage.
2.4 Record reveals that the cheque which was issued by the petitioner - original defendant in favour of the respondent - original plaintiff came to be dishonoured for insufficiency of funds in the account of the petitioner - original defendant. It is in this background that ultimately, the petitioner plaintiff instituted a summary civil suit for recovery of Rs.3,90,000/- inclusive of interest.
2.5 Summons was served upon the petitioner - original defendant and petitioner - original defendant filed leave to defend vide Exh.14 contending that defendant is not a partnership firm but it is a proprietary concern and the petitioner i.e. defendant has not signed the receipt and therefore, the petitioner - original defendant is not liable to pay the amount to the respondent - original plaintiff @ 18% interest.
2.6 Taking into consideration all the relevant aspects of the matter, learned City Civil Judge came to the conclusion that the petitioner - original defendant is not entitled to leave to defend as the facts disclosed by the petitioner - original defendant do not indicate that he has a substantial defence to raise and the defence intended to be put up by the petitioner's defence is frivolous and vexatious. Accordingly, the application came to be rejected and City Civil Judge proceeded to pass the final decree for the sum of Rs.3 lakhs with running interest @ 9% per annum from the date of the suit till realization with cost of the suit.
3. I have heard learned advocate Ms. Sangita Ahuja appearing for the petitioner - original defendant and learned advocate Mr. G.M. Joshi appearing for the respondent - original plaintiff. Learned advocate Ms. Ahuja vehemently submitted that learned City Civil Judge has committed gross error in refusing leave to defend the summary suit. She vehemently submitted that there are triable issues involved and therefore, learned Judge at least should have granted conditional leave to defend on payment of some amount.
4. Per contra, learned advocate Mr. Joshi submitted that no error much less an error of law can be said to have been committed by learned Judge in refusing leave to defend and passing final decree in favour of the respondent - original plaintiff. He submitted that on the face of the record, it is clear that the defence is frivolous and vexatious.
5. Having heard learned Counsel appearing for respective parties and having perused the impugned order under challenge, I am of the view that no error much less an error of law can be said to have been committed by learned City Civil Judge in passing the impugned order. It is an undisputed fact that an amount of Rs. 3 lakhs was deposited by the respondent - original plaintiff with the petitioner - original defendant. There was an agreement between the parties. Petitioner - original defendant was obliged as per the agreement to pay the amount of Rs. 3 lakhs along with interest in favour of the respondent - original plaintiff within 45 days. There is no dispute with the fact that a cheque for Rs. 3 lakhs i.e. the principal amount was drawn by the petitioner - original defendant in favour of respondent - original plaintiff but the same came to be dishonoured due to insufficiency of funds in the account of the petitioner - original defendant. It is thereafter that the summary suit came to be filed by the respondent - original plaintiff. The contention on behalf of the petitioner - original defendant that he has not a partner of defendant No.1 Firm, but, he is a proprietor of defendant No.1 Firm and therefore, the receipt is a bogus receipt and he has not signed the receipt, cannot be accepted and treated as a triable issue because the same prima facie appears to be dishonest. Learned City Civil Judge to my mind has taken care of all aspects in paragraph 4 of the impugned order which reads as under :
"4. The plaintiff has produced the documents vide list Exh.4 and mark 4/1 is a receipt issued by the partner of the defendant no.1-firm, that is, the defendant no.2. The defendant no.2 vehemently denied the receipt and submitted that the defendant no.2 is not a partner of the defendant no.1-firm, but he is a proprietor of the defendant no.1-firm. Therefore, it is a bogus receipt and he has not signed the receipt. To my mind, merely the defendant no.2 has signed as a partner, and he claimed as a proprietor of the defendant no.1, it does not make any difference as the receipt is issued by the defendant no.2 to the plaintiff. So, prima facie, at this juncture, it appears that the defendant no.1 - firm has accepted Rs.3,00,000/- from the plaintiff. Mark 4/2 prima facie shows that the defendant no.1 issued a cheque of the deposit amount which is dishonoured. The plaintiff has also produced the statement of account which shows that Rs.3,00,000/- are due against the defendants. The main defence of the defendants is mere denial of the facts. No doubt, the plaintiff has not produced any document to show that he is entitled to recover interest at the rate of 18% p.a., but under Section 80 of the Negotiable Instruments Act, the plaintiff is entitled to recover interest at the rate of 18% p.a., but there is no such endorsement on the cheque regarding the interest. So, Section 80 of the Negotiable Instruments Act does not entitle the plaintiff to recover interest at the rate of 18% p.a. The plaintiff also waived interest by filing pursis along with the rejoinder affidavit. Moreover, the plaintiff did not claim interest as a custom or usage of trade. Therefore, the defendants stated that the suit is not maintainable under the summary procedure as decided by the Hon'ble Gujarat High Court in the case of P.P. Prajapati V/s. Jagdish Timber Mart and others, 1985 G.L.H. (UJ) 2 is not applicable and the suit is maintainable under the summary procedure.
The l.a. for the defendants cited some judgments and the crux of the judgments are that if the defendant satisfies the court that he has a good defence to claim on merits, the defendant is entitled to unconditional leave to defend and same principle is laid down in the case of Sunil Enterprises V/s. The SBI Commercial and International Bank Ltd. reported in AIR 1998 SC 2217, but in the present case, the defendants have not made out any specific case or good defence for unconditional leave to defend the suit."
6. In the aforesaid view of the matter, I do not find any merit in any of the contentions canvassed on behalf of the petitioner - original defendant. No case has been made out to interfere with the impugned order in exercising of my supervisory jurisdiction under Article 227 of the Constitution of India.
7. In the result, the petition fails and the same is rejected with no order as to costs.
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[J.B.
Pardiwala, J.] #MH Dave/ps Top