1. By way of present petition, the petitioners (Org. plaintiffs) challenge the order dated 27.9.2002 passed by the learned Judge, City Civil Court at Ahmedabad, in Summary Suit No.2571 of 2001 below Exhibit 8, whereby leave to defend the suit is granted on condition that defendant of that suit to deposit 50% of the suit amount within six weeks from the date of the order.
2. The facts of the case are such that the petitioners were being harassed on telephone and therefore, a Chapter Case was filed before Executive Magistrate, Ahmedabad. On 29.9.1999, the petitioners issued notice to respondent and one Anilbhai by stating that the said two persons i.e. respondent and Anilbhai were not the creditors of the petitioners nor any transaction took place. In the said notice, it also stated that the said two persons were asked to refrained themselves from harassing the petitioners. In response thereto, notice on 1.10.1999 on behalf of said two persons, by stating therein that Pragneshbhai Rameshchandra Shah styling himself as sole proprietor of respondent Enterprises addressed to Maruti Chemicals as well as to the petitioners, inter alia stating that said Pragneshbhai was engaged in the business of Dies and Chemical and the petitioners had purchased materials on 11.6.1998 for the amount of Rs.1,02,173.40 for which the petitioner No.8 was invoiced as well as another material was purchased on 18.7.1998 for an amount of Rs.1,02,673.40 for which bill No.11 was invoiced. The said notice contained that the petitioners were debtors of the respondent to the tune of Rs.2,04,846.80 and false complaint was filed. The petitioners herein filed Summary Civil Suit No.2571 of 2001 was filed before the Court of City Civil Court, naming M/s. Maruti Chemicals, a firm describing the petitioner No.2 as the owner/partner and naming the petitioner No.1 as defendant No.2, prayed for recovery of an amount of Rs.3,48,239.56. The summons of the suit were served on 16.7.2001. In the said suit, the petitioner No.1 filed an application seeking leave to defend below Exhibit 11. In the said suit, one Mr. Kartik Bhavsar had filed application for being joined him as third party – respondent, which was at Exhibit 26 and the same was rejected and the application for getting certified copy for said rejection order was filed, seeking time on the ground that the said third party wanted to approach the High Court by way of revision application, which was also rejected. On 16.8.2002 below Exhibit 27, the advocate for third party filed an application seeking time on the ground that the third party had suffered an accident. The trial Court held that since the summons of the suit was served on the defendants on the address mentioned in the plaint and since it was accepted by the defendant No.2 – present petitioner No.1 without any objection and in view of the Vakalatnama having been filed by the original defendants, which shows that there having signed same as part of the Maruti Chemicals, the trial Court considered that there was specific document of the defendant that there were partners of defendant No.1 and further held that there was an agreement to charge interest @ 24% per annum and therefore, leave to defend the suit was granted on condition of the defendants depositing 50% of the suit amount within six weeks from the date of the order dated 27.9.2002.
3. Learned advocate Mr. Parekh for Mr. Harin Raval for the petitioners and learned advocate Mr. Premal Joshi for respondent No.1.
4. Learned advocate advocate Mr. Parekh stated that learned trial Judge has not considered the facts of the Civil Suit and without application of mind and without considering the facts of the case, conditional leave to defend is granted. He stated that the order passed by the trial Court is required to be quashed and set aside.
5. Learned advocate Mr. Joshi read the provisions of Code of Civil Procedure and submitted that order passed by the trial Court is just and proper and as per the provisions of law. As per his submission, the petition is not required to be entertained as it is not tenable in the eye of law.
6. Heard both the parties and perused the record along with the order passed by the trial Court. The issue involved in the Summary Suit is not required to be entertained on merits, at this stage. During the course of argument, the petitioners agree about to deposit of 25% of the suit amount before the trial Court, as the matter is very old i.e. of the year 2002.
7. In view of the statement of the parties, without entering into merits of the case, the petitioners – original defendants are directed to deposit 25% of the suit amount before the Nazir of City Civil Court, Ahmedabad, within one month from the receipt of this order. The concerned City Civil Court is directed to dispose of the Summary Suit No.2571 of 2001 within a period of five months from the receipt of this order, in accordance with law, without being influenced by this order.
8. In view of the above, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
YNVYAS (Z.K.SAIYED, J.)