Gujarat High Court
Maa Shanti Trading Thro Propreitor ... vs Nima Marketing Enterprise Nirma ... on 21 March, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/1161/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1161 of 2013
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MAA SHANTI TRADING THRO PROPREITOR HARIPARPANNA RAM
GOBIND & 4....Petitioner(s)
Versus
NIMA MARKETING ENTERPRISE NIRMA CONSUMER CARE LIMITED &
3....Respondent(s)
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Appearance:
MR ASHISH H SHAH, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 3
MR GAURAV S MATHUR, ADVOCATE for the Respondent(s) No. 2
NOTICE NOT RECD BACK for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 21/03/2016
ORAL ORDER
[1] By way of present petition filed under Article 227 of the Constitution of India, the petitioner (defendant No.1) challenges the order dated 29.11.2012 passed below application Exh.16 in Summary Civil Suit No.843 of 2008 by the learned Chamber Judge, Court No.114, City Civil Court, Ahmedabad in so far as it imposes condition of depositing 35% of the suit amount.
[2] I have heard learned advocate Mr.Ashish H. Shah appearing for the petitioner (original defendant No.1) and learned advocate Mr.Gaurav S.Mathur appearing for respondent Nos.1 and 2 (original plaintiffs). With the consent of learned advocates appearing for the respective parties, the present petition is taken up final disposal.
[3] Having heard submissions made at bar, it appears that Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Mar 23 00:38:11 IST 2016 C/SCA/1161/2013 ORDER learned trial Judge while granting leave to defend, directed the petitioner (defendant No.1) to deposit 35% of the suit amount and while imposing such condition, the learned trial Judge made following observation in para-20 of the impugned order, which read as under:-
"20. Considering the guidelines given by the Hon'ble Supreme Court, herein in this case, the defense raised by defendant No.1 cannot be said to be good defence by that the plaintiff is not entitled to get judgment at any point of time, but the defence raised by the defendant can be said to a triable issues which can be decided by full-fledged trial. The question of limitation, question of assignment of debt, question of liability of ICICI Bank, question of forged documents, question of committeemen of fraud,, all these points can be said to be triable issues and th same fall within the category (e) of the above mentioned guidelines and therefore, this Court is of the opinion to grant conditional leave to defend subject to deposit of 35% of the suit claim within two months from the date of this order."
[4] Learned advocate Mr.Gaurav S.Mathur appearing for respondent Nos.1 and 2 (original plaintiffs) would contend that the learned trial Court can impose such condition and for that he made a reference to the guideline No.(c) laid down by the Hon'ble Apex Court in case of M/s. Mechalec Engineers and Manufacturers v/s. M/s.Basic Equipment Corporation, reported in AIR 1977 SC 577. The said guideline No.(c) reads as under:-
"(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, shows 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 Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Mar 23 00:38:11 IST 2016 C/SCA/1161/2013 ORDER defence but in such a case the Court may in its discretion impose conditions as to the time or made of trial but not as to payment into Court or furnishing security."
[5] In Court's considered opinion, the guideline No.(c) does not confer any power upon the Court to impose condition as to payment into Court or furnishing security. Even otherwise, once the Court finds triable issues in respect to the question of limitation/assignment of debt, question of liability of ICICI Bank, question of forgery of documents, then such issues cannot fall in category of guideline No. (e) and therefore, the learned trial Judge has committed an error in imposing condition to deposit the amount of 35%. Not only there is no reasons assigned as to why learned trial Judge imposed condition to deposit 35%. Neither guideline Nos. (c) or (e) empowers the Court to impose such condition in view of the facts of the present case and therefore, present petition requires to be accepted and accordingly, it is hereby allowed. The impugned order dated 29.11.2012 passed below application Exh.16 in Summary Civil Suit No.843 of 2008 by the learned Chamber Judge, Court No.114, City Civil Court, Ahmedabad is hereby quashed and set aside and the petitioner-defendant No.1 is granted unconditional leave to defend the suit and petitioner-defendant No.1 is directed to file written statement within four weeks from today. Accordingly, present petition stands allowed with no order as to costs.
(S.H.VORA, J.) siddharth Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Mar 23 00:38:11 IST 2016