1. Challenge is made of the order of the conditional leave granted by the learned Senior Civil Judge in Summary Suit No.131 of 2010 on 11.1.2012 in a suit filed by the respondent original plaintiff for the recovery of the sum of Rs.10,36,000/ being the principal amount of the loan along with interest thereon at the rate of 18% per annum. The petitioner partnership firm, is the original defendant, and petitioner No.2 is the partner of the said firm, who has business relationship with the respondent.
Petitioner being in a need of finance for his business, an amount of Rs.7 lakhs had been obtained as loan from the respondent on 20.6.2009.
2. The cheque of Rs. 7 lakhs had been given by way of a collateral security by petitioner No.2. It is the say of the petitioner that the statement of account produced by the respondent plaintiff clearly indicates that total amount of Rs.12,42,000/ has been paid against the loan of Rs.7 lakhs by 22.9.2010 and only with an ulterior motive to harass the petitioner, cheque of Rs. 7 lakhs which was given by way of collateral security, has not been returned by the respondent and the summary suit has been wrongly filed.
3. It is the say of the learned advocate Mr. Sahil Shah appearing for the petitioners that the order impugned is bad for having permitted the present petitioners to deposit 30% of the claimed amount and this conditional leave could not have been granted in the wake of various contentious issues emerging in the matter. He relied on various decisions sought to be produced before the trial Court for getting the unconditional leave. It is the say of the learned advocate that the statement of account clearly indicates payment of almost Rs.5 lakhs more than the principal amount and, therefore, also unconditional leave ought not to have been rejected.
4. On issuance of the notice, learned advocate Mr. Kedar Binniwale appeared for the original plaintiff respondent and filed affidavitinreply inter alia urging that the order passed is in consonance with the prayers and the total amount advanced to the petitioner is more than Rs. 1 crore. On different occasions cheques were given by the petitioner towards repayment of total outstanding amount, which has been dishonoured. Various complaints under the Negotiable Instruments Act have been filed before the Court of Judicial Magistrate, Vadodara. The list of cases along with the complaint numbers, date of filing and the amount involved have been produced at AnnexureR1. It is further the say of the respondent that though there was a direction to deposit 30% of the cheque amount within 30 days on or before 10.2.2012, on 10.2.2012 extension of time was sought for depositing 30% of the cheque amount on the ground of financial stress. The time was extended upto 24.2.2012. On that day, for challenging the order as well as for the purpose of settlement of disputes amicably with the present respondent, an application was moved by the petitioner, which was rejected by the trial Court and these aspects have not been revealed in this petition.
In the rejoinder reply, learned advocate Mr. Shah emphasized that in the summary suit preferred before the trial Court, nowhere there is reference of advancement of Rs.1 crore nor has any further account furnished and the only detail which has been produced is indicative of the payment of Rs.12,42,000/ There is a further affidavit tendered by learned advocate Mr. Shah in which it is stated that the only transaction with the respondent is of Rs.7 lakhs, only and the rest of the transactions are with the partnership firm where the respondent is a managing partner. The copies of 20 complaints are indicative that the respondent is proprietor of A1 Industries and partner of Kashyap Chemicals ( partnership firm).
5. On having thus heard, learned advocates for the parties, as also on having examined the record, it can be seen from the complaint that the only amount said to have been advanced is Rs.7 lakhs. There is a reference of cheque of Rs.7 lakhs which has been tendered on a request of the petitioner and the time of 6 months elapsed thereby. In a leave to defend application, various grounds are raised and one amongst such is that the entire amount has already been paid back. It was the say of the present petitioner that the cheque was given as a collateral security, which was required to be returned and the same has not been done. Of course, in the said application for leave to defend there is a reference of various cheques which were lying with the present respondent and various complaints having been filed, the interest of 36% also is questioned. It is also the fact that the reliance is placed only on the statement of account from 30.6.2009 to 20.10.2010.
As can be seen from the record number of complaints lodged against the present petitioner, is nearly 48 filed under Section 138 of the Negotiable Instruments Act for different amounts and first such complaint was filed on 14.12.2010 and, thereafter on various dates right upto 17.3.2011, these complaints were filed. Leave to defend application was preferred on 28.7.2011, which means that after these complaints have been filed, the said application has been filed. As contended rightly by learned advocate Mr. Shah there does not appear to be any indication of either total amount of Rs.1 crore or pendency of so many complaints against the respondents. Be that as it may, right now, this Court is concerned with the order impugned, whereby conditional leave is granted.
6. The ledger account of respondent maintained in his personal capacity makes a mention of only a sum of Rs.7 lakhs and in the details received towards advancement of this Rs.7 lakhs, as mentioned hereinabove and in the leave to defend application of the petitioner, he has referred to various cheques, but, the respondent has not stated anything with regard to transaction of Rs.1 crore.
7. Short question here is as to whether this Court in the petition under Article 227 of the Constitution requires to interfere with an order of the trial Court. As is apparent, the Court has noted of the petitioner has signed the assurance vide Exh.11. The Court also further recorded other transactions of petitioner with the respondents and various complaints. It is also further actuated by the fact that the bank statement reflected the year of 2009 and the defence is only a moonshine. The Court also further noted that the petitioner agreed to have given the cheque as a collateral security and considering all the aspects, as also the assurance letter, which mentions the rate of interest agreed to by and between the parties, it granted leave to defend only on production of 30% of the total amount cumulatively considering all these details.
It would be worthwhile to note here the decision of the Apex Court in the case of M/s.Mechelec Engineers and Manufacturers vs. M/s. Basic Equipment Corporation reported in (1976) 4 SCC 687, reported in Ms. Mechele Engineers and Manufactures. vs. Basic Equipment. Here there is neither a jurisdictional error nor any miscarriage of justice. The order is not such where there is material illegality which shocks conscience of the Court calling for interference. Merely because from the same gamut of facts this Court can reach to some other conclusion, also cannot be a ground to interference. Here in this case, even no case is made that disregarding the material on the record this order of conditional leave is passed. Resultantly, this petition deserves dismissal with no further consideration and is, therefore, dismissed.
sudhir ( Ms. Sonia Gokani, J. )