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Gujarat High Court

Kkspun India Limited Through Director ... vs Delisha Engineering Through Partner, ... on 19 March, 2024

Author: Sunita Agarwal

Bench: Sunita Agarwal

                                                                                            NEUTRAL CITATION




      C/SCA/18285/2023                                        ORDER DATED: 19/03/2024

                                                                                             undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18285 of 2023

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KKSPUN INDIA LIMITED THROUGH DIRECTOR KAVISH PRAMOD GUPTA
                           Versus
 DELISHA ENGINEERING THROUGH PARTNER, DONAR JAYESHBHAI
                           PATEL
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                   Date : 19/03/2024
                    ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Heard learned counsels for the parties and perused the record.

2. We may note that the present petition invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India has been filed challenging an order dated 31.8.2023 passed by the learned Commercial Court, City Civil Court, Ahmedabad in a Summary Commercial Suit filed by the plaintiff for recovery of a sum of Rs.86,00,000/- and odd, for supply of Mounted Sluice Gates, registered as Commercial Suit No.652 of 2021. There is no dispute about the transactions between the parties, supply of Mounted Sluice Gates on two purchase orders dated 6.9.2016 and 30.1.2017, given by the defendant-

NEUTRAL CITATION C/SCA/18285/2023 ORDER DATED: 19/03/2024 undefined petitioner herein. In the application seeking leave to defend, the defendant - petitioner herein alleged that the goods which were sent by the plaintiff were of inferior quality. As per the agreement between the parties, the weight of the Gate was required to be not less than 1500 kg. per Gate, whereas the Gates supplied by the plaintiff were of weight 384.14 kg. It is admitted that 73 Gates were supplied by the plaintiff to the defendant.

3. A counter claim has been filed by the defendant

- petitioner herein raising a claim of sufferance of huge loss of Rs.55,00,000/- and odd, on account of delivery of inferior quality goods. The defendant has further relied upon two email correspondence dated 8.12.2017 and 4.1.2018 to assert that the fact of inferior quality goods / Gates supplied by the petitioner was agitated at that point of time soon after the supply made to the plaintiff. A perusal of the email dated 8.12.2017 at page '79' of the paper- book indicates that the only issue raised therein was with regard to packing of the goods with the assertion that the material received at the site was without any insulation and proper packing and a request was made that the material at the site should be sent in a proper way (wooden box packing). The another correspondence dated 4.1.2018 at page '81' of the paper book contains "Two Gate are rejected against bill no.203, debit note enclosed herewith from M/s. Delisha Engg." and another email of the Page 2 of 4 Downloaded on : Wed Mar 20 20:42:46 IST 2024 NEUTRAL CITATION C/SCA/18285/2023 ORDER DATED: 19/03/2024 undefined same date at page '82' sent at about 12:36 p.m. states "Acceptance of Defective gates from M/s. Delisha Engg.".

4. Taking note of the said correspondence brought before the Commercial Court, as noted in para '11' of the order impugned, we find that no infirmity can be pointed out in the decision of the Court that the dispute was raised only with respect to two Gates being defective and regarding packaging of the material supplied to the plaintiff. In total, 73 Gates were supplied and dispute was raised only with respect to two Gates. It is noted by the Commercial Court that there is no material on record produced by the defendant to show that all the Gates supplied by the plaintiff were defective. No joint report or no report was produced before the Court concerned. It is further noted that as against the total outstanding towards the plaintiff, even if the contention of the defendant is admitted that there is deficiency or it is entitled to the damages to the tune of Rs.55,00,000/- and odd, balance of Rs.6,00,000/- and odd is still outstanding. It was further noted that the defendant had received all the goods and retained the same and they were never returned to the plaintiff. In the said scenario, the order granting leave to defend to the petitioner herein (defendant in the suit) on the condition of deposit of Rs.10,00,000/-, cannot be said to suffer any error of law, much less manifest error which would require Page 3 of 4 Downloaded on : Wed Mar 20 20:42:46 IST 2024 NEUTRAL CITATION C/SCA/18285/2023 ORDER DATED: 19/03/2024 undefined invoking extraordinary jurisdiction under Article 227 of the Constitution of India.

5. We may note that by orders passed by us from time to time, the time period for deposit of the amount of Rs.10,00,000/- for grant of leave to defend has been extended. The last extension was until yesterday, i.e. 18.3.2024. We, therefore, grant four weeks further time to the defendant to comply with the order dated 31.8.2023 passed by the Commercial Court, subject matter of challenge herein.

Subject to the above observations and direction, present petition stands dismissed.

(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 4 of 4 Downloaded on : Wed Mar 20 20:42:46 IST 2024