Gujarat High Court
Iifl Securities Llimited vs Ratneshwarsingh Bindeshwarsingh on 8 April, 2025
NEUTRAL CITATION
C/SCA/15387/2024 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15387 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 15387 of 2024
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IIFL SECURITIES LLIMITED
Versus
RATNESHWARSINGH BINDESHWARSINGH
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Appearance:
PRITHU PARIMAL(9025) for the Petitioner(s) No. 1
TIRTH NAYAK(8563) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/04/2025
ORAL ORDER
1. RULE returnable forthwith. Learned advocate Mr. Tirth Nayak waives service of notice of Rule on behalf of the respondent.
2. Heard learned advocate Mr. Prithu Piramal for the petitioner and learned advocate Mr. Tirth Nayak for the respondent.
3. The present petition is filed under Article 227 of the Constitution of India seeking the following reliefs :-
"(A) That the Honourable Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction to quash and set aside the order Page 1 of 8 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 01:08:00 IST 2025 NEUTRAL CITATION C/SCA/15387/2024 ORDER DATED: 08/04/2025 undefined dated 20.03.2024 (Annexure-A) passed in New Trial Application No.3/2016 by the Division Bench of Small Cause Court at Ahmedabad;
(B) Pending the hearing and final disposal of the petition, the Honourable Court be pleased to stay the operation, implementation and execution of the order dated 2.07.2015 passed below exh.1 (Annexure-D) in Summary Suit No.595/2014 by the Small Cause Court at Ahmedabad;"
4. At the outset, learned advocate Mr. Prithu Piramal for the petitioner has submitted that after service of summons upon the petitioner, who happens to be the defendant in the Summary Suit No.595 of 2014 filed by the respondent herein, the summons for judgment was never served upon the advocate for the petitioner or the petitioner in person. It is submitted that inspite of non- service of summons for judgment upon the petitioner and without verifying the said aspect, the trial Court vide its judgment and decree dated 02.07.2015 has allowed the Suit in favour of the respondent. It is submitted that as per Section 38 of the Presidency Small Cause Courts Act, 1882, a new trial Application No.3 of 2016 has been filed by the petitioner before the Appellate Bench of the Small Cause Court, Ahmedabad which unfortunately was dismissed vide its impugned judgment and order dated 20.03.2024.
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5. It is further submitted as both the Courts below have erroneously observed that there is service of summons of judgment upon the petitioner who remained absent having not filed any leave to defend as per Order 37 of CPC passed decree which is confirmed by appellate bench. Learned advocate Mr. Prithu Piramal has further submitted that as per the record of the trial Court, its certified copy produced before this Court would clearly indicate that neither the endorsement of the learned advocate appearing for the petitioner having received the summons for judgment is available nor any registered post receipt has been submitted by the respondent before the trial Court to substantiate that the petitioner has received such summons for judgment on record of the suit. So, learned advocate Mr. Prithu Piramal would submit that the impugned judgment and decree passed by the trial Court, which is confirmed by the Appellate Bench is required to be quashed and set aside only on the ground that it is passed in violation of the principles of natural justice and requested to remand the matter back to the trial Court for fresh consideration of summons for judgment by allowing the petitioner to file its leave to defend, in accordance with law. Making the above submissions, it is prayed that the present petition may be allowed.
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6. Per contra, learned advocate Mr. Tirth Nayak for the respondent has vehemently opposed the present petition contending inter-alia that both the Courts below have concurrently held against the petitioner. The petitioner was served with the summons for judgment, then this Court exercising its limited power under Article 227 of the Constitution of India may not interfere with the impugned judgment and order passed by the Court below. It is further submitted that on entering appearance by learned advocate for the petitioner he was served with summons for judgment but in fact, he has remained absent and has chosen not to file leave to defend on behalf of the petitioner, which has resulted into passing of the impugned judgment and decree by the trial Court. It is also submitted that the petitioner was additionally served with a copy of the summons of judgment by Registered Post, which is duly recorded by the trial Court in its impugned judgment and order. It is further submitted that when the facts are recorded by the Courts below, the same may not be re-appreciated by this Court while examining the impugned order in its limited jurisdiction.
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7. It is lastly submitted that if this Court is inclined to accept this writ application of the petitioner, the matter may be remanded back to the trial Court with a direction to decide and adjudicate the summons for judgment within a stipulated time as the Summary Suit was filed in the year 2015. Making the above submissions, learned advocate Mr. Tirth Nayak requested for dismissal of the writ application.
8. No other and further submissions have been made by any of the respective learned advocates.
9. After hearing the learned advocates for the respective parties, and after going through the impugned judgment and order as well as copy of the summons for judgment and Rojkaam of Summary Suit No.595 of 2014, submitted for perusal of this Court, I am of the view that there is nothing on record which remotely suggest that the petitioner was served with the summons of judgment. There is no endorsement of learned advocate for the petitioner on the copy of summons for judgement available whereby it can be confirmed that he has in fact received the summons for judgment. Likewise, there is nothing on record to suggest or at least brought before this Court by the respondent that the petitioner has been Page 5 of 8 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 01:08:00 IST 2025 NEUTRAL CITATION C/SCA/15387/2024 ORDER DATED: 08/04/2025 undefined served with summons for judgment through Registered Post. The Rojkaam of the said Suit is also not confirming about service of summons upon the petitioner / defendant. All these facts lead to suggest that at given point of time, neither learned advocate of the petitioner was served with summons for judgment nor petitioner in absence of the certificate of postal department of service of post allegedly made by plaintiff, there was no reason for the petitioner to submit his leave to defend application as provided under Order 37 of the CPC. It appears that this aspect has been completely lost sight by trial Court as well as by the Appellate Bench of the Small Cause Court while adjudicating the dispute between the parties.
10. Thus, having so observed the aforesaid facts, the judgment and order passed by the trial Court as well as the Appellate Bench of Small Cause Court is required to quashed and set aside only on the ground that without observing the principle of natural justice and not serving a copy of summons of judgment upon the defendant / the petitioner, the impugned decree is passed against petitioner.
11. So, in view of the above, the impugned judgment/order/decree passed by the trial Court in Page 6 of 8 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 01:08:00 IST 2025 NEUTRAL CITATION C/SCA/15387/2024 ORDER DATED: 08/04/2025 undefined Summary Suit No.595 of 2014 vide order dated 02.07.2015 and confirmed by the Appellate Bench of Small Cause Court, Ahmedabad in New Trial Application No.3 of 2016 vide order dated 20.03.2024 is hereby quashed and set aside and the matter is remanded back to the trial Court.
12. In view of aforesaid, following order is passed :-
(i) Summary Suit No.595 of 2014 filed by the respondent is restored back to its original file, alongwith the summons of judgment so filed in the Suit.
(ii) Now, the petitioner-defendant is already having a copy of summons of judgment then, within fifteen days from today, the petitioner-defendant is hereby directed to submit its leave to defend application by serving an advance copy to the respondent / plaintiff.
(iii) It is open for the plaintiff to submit his reply, if any, against such leave to defend application which may be filed within a period of ten days from the date of receipt of leave to defend application so filed by defendant.
(iv) Once such pleading gets over, the trial Court is hereby requested to take up the summons for judgment as well as the leave to defend at the earliest, after giving Page 7 of 8 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 01:08:00 IST 2025 NEUTRAL CITATION C/SCA/15387/2024 ORDER DATED: 08/04/2025 undefined an opportunity of hearing to both the side then after, adjudicate / decide such applications in accordance with law albeit, without being influenced by any of its observation so made in the orders impugned in present petition or so made by this Court in this order.
(v) Such applications be decided by trial Court on or before JUNE 16, 2025.
13. The petition is allowed in the aforesaid terms. Rule made absolute. Direct Service is permitted.
14. As a sequel, the connected Civil Application stands disposed of.
Sd/-
(MAULIK J. SHELAT,J) CAROLINE Page 8 of 8 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Apr 11 2025 Downloaded on : Sat Apr 12 01:08:00 IST 2025