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Gujarat High Court

Bitin Narendrabhai Goswami vs Bipinkumar Chimanlal Vyas on 31 August, 2023

                                                                                NEUTRAL CITATION




     C/SCA/26418/2022                             ORDER DATED: 31/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 26418 of 2022

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                        BITIN NARENDRABHAI GOSWAMI
                                   Versus
                         BIPINKUMAR CHIMANLAL VYAS
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR A R DWIVEDI(11319) for the Respondent(s) No. 1
MR R G DWIVEDI(6601) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                              Date : 31/08/2023

                               ORAL ORDER

Having heard learned Advocate for the respective parties, at the outset considering the aspect that the plaintiff has filed the Summary Case No.17 of 2018 and claimed interest @ 18% upon the principal amount, essentially the suit will not fall within the jurisdiction under O.37 of the CPC. Unfortunately, the trial Court without reading the said provisions and without considering the decision in the case of Chlcochem Limited vs. Lifeline Industries Limited (SCA No.13041 of 2012) as well as the decision of this Hon'ble Court in the case of Posco Poggenamp Electrical Steel Pvt. Ltd. v. TBEA Energy (India) Pvt. Ltd., (SCA No.301 of 2023) has passed the conditional order on leave to defend the application directing the petitioner to deposit 20% of Rs.11,50,000/- to defend the suit.

2. Since the impugned order is suffering from patent illegality, it does not survive and deserves to be quashed and set aside.

NEUTRAL CITATION C/SCA/26418/2022 ORDER DATED: 31/08/2023 undefined The summary suit has to be filed without seeking relief of interest until the plaintiff produced contract permitting him to claim interest upon the principal amount. Accordingly, the impugned order is quashed and set aside. The suit is converted into the long cause suit / Regular Civil Suit. The petitioner is permitted to file written statement within next 60 days without fail as per the mandate of in O.8 R.1 of CPC. It is expected from the learned trial Court that it shall hear and decide the said suit within the outer limit of nine months without being influenced by its earlier order, as well as order under challenge. It goes without saying that the suit is converted into Long Cause Suit / Regular Civil Suit, the plaintiff is at liberty to amend the plaint under O.6 R.17; however within the parameters of the said provision and that too before framing of the issue.

3. With the aforesaid observations and directions, present petition stands disposed of.

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