Gujarat High Court
Heirs Of Deceased Pratapkumar ... vs Paresh Manilal Soni on 7 October, 2024
NEUTRAL CITATION
C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1466 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
HEIRS OF DECEASED PRATAPKUMAR BHAGWANJI THAKKAR & ORS.
Versus
PARESH MANILAL SONI
==========================================================
Appearance:
KULDEEP J MEHTA(8571) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR ABHAYKUMAR P SHAH(3093) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR BY MANKAD(440) for the Respondent(s) No. 1
MS AGNEYA B MANKAD(12768) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/10/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. B.Y. Mankad waives service of notice of rule for and on behalf of the respondent.
Page 1 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined
2. The challenge in the instant application filed under Article 226 of the Constitution of India, is the order dated 08.01.2024 passed below Exh.14 in Special Summary Suit No.1 of 2022 by the learned Principal Senior Civil Judge, Nakhatrana-Kachchh, rejecting the application of the writ applicant filed below Exh.14 under Order XXXVII Rule 3(b) of the Code of Civil Procedure, 1908 (in short 'CPC"), seeking leave to defend the suit.
3. The relevant factual and background aspects of the matter are as follows:
3.1 The plaintiff-respondent filed the subject suit in terms of Order XXXVII of the CPC against the defendants-writ applicants, inter alia, stating that he was having cordial relationship with the father of the defendants-writ applicants, and therefore, time and again, they were entering into some financial transactions.
3.2 According to the plaintiff-respondent, on 15.02.2021, as the father of the defendants-writ applicants was in some financial need, he approached the respondent-plaintiff and demanded an amount of Rs.33,00,000/- with the assurance of paying back the said amount within two months, which was accordingly given by the respondent-plaintiff.
3.3 The plaint also states that against the outstanding amount payable to the plaintiff-respondent, the father of the applicants-defendants issued a cheque bearing No.112257 dated 15.04.2021 for an amount of Rs.33,00,000/- of The Axis Bank, Bhuj Branch drawn in favour of the plaintiff-respondent.
The plaintiff-respondent negotiated the cheque in question Page 2 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined through its banker Bhuj Mercantile Co.Op. Bank Ltd., Nakhatrana which was dishonoured with an endorsement of "funds insufficient".
3.4 The plaintiff-respondent, thereafter, issued a statutory notice dated 13.05.2021, and called upon the father of the writ applicants-defendants to make good the amount mentioned in the cheque, however, despite such notice being issued, the father of the writ applicants-defendants did not make the payment. The plaintiff-respondent, thereafter, proceeded to file a complaint before the competent court under Section 138 of the Negotiable Instruments Act, 1881.
3.5 The plaintiff-respondent then filed summary suit being Special Summary Suit No.1 of 2022 in the court of the learned Principal Senior Civil Judge, Nakhatrana-Kachchh under Order XXXVII Rule 2 of the CPC for recovery of an amount of Rs.33,00,000/- indebted to the plaintiff-respondent with 18% interest accrued thereon, whereupon, summons came to be issued to the defendants-applicants on 21.04.2022. However, the original defendant did not remain present either in person or through an advocate.
3.6 Thereafter, on 01.08.2022, the original defendant Pratap Kumar Bhagwanji Thakkar passed away and, therefore, the respondent-plaintiff moved an application below Exh.7 to bring on record the heirs of the deceased-defendant, wherein notice came to be issued to the applicants-defendants, which was duly served to them, however, they could not remain present before the trial court, which led the trial judge to pass an order of proceeding ex-parte, which order then got quashed and set Page 3 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined aside by the applicants-defendants and obtained an order of bi-parte hearing, and ultimately, they were ordered to be joined as party to the proceedings.
3.7 Thereafter, on 14.03.2023, the applicants-defendants filed an application below Exh.14 in Special Summary Suit No.1 of 2022 under Order XXXVII Rule 3 of the CPC, inter alia, praying for leave to defend the suit on the grounds made thereunder. The said application came to be rejected by the learned Principal Senior Civil Judge, Nakhatrana-Kachchh vide order dated 08.01.2024. Being aggrieved, the applicants- defendants are here before this Court with the present application.
4. Learned advocate Mr. A.P. Shah appearing for the applicants-defendants submits that the applicants-defendants are aggrieved of the impugned order dated 08.01.2024 and has challenged the same by means of the present application, inter alia, on the ground that the trial court has failed to appreciate the important aspects of the matter that were agitated and reflected by the applicants-defendants in their application seeking leave to defend, as it had been asserted that there was no amount borrowed by the father of the applicants-defendants from the respondent-plaintiff and the plaintiff has also not produced on record any documentary evidence in the form of any agreement with regard to the amount alleged to have been borrowed by the father of the applicants-defendants, bank statement, income-tax return or any other document to show that the plaintiff was actually having such a huge amount so as to give it to the father of the Page 4 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined applicants-defendants; that the Trial Court has also erred in law in not considering the very vital aspect of the matter that the respondent-plaintiff has not produced the original documents in respect of his claim, and even the xerox copies which were produced along with the suit, were also not provided to the applicants-defendants, and thereby not complied with the procedure as prescribed under Order XXXVII Rule 3 of the CPC.
5. It is further pleaded that it was imperative upon the trial court to grant an unconditional leave to the applicants- defendants to defend the suit in question on account of the fact that the defense pleaded by the applicants was: (a) triable issue regarding non-existence of any debt to the tune of Rs.33,00,000; and (b) non-production of the original documents along with the suit as also not providing it to the applicants-accused as per Order XXXVII Rule 3 of the CPC.; that once a triable issue is raised in a Suit of summary nature indicating that there exists fair or bona fide or reasonable defence in favour of the defendant, he has to be granted leave to defend the suit; that the applicant, as defendant, had raised a reasonable defence, even if, for the sake of arguments, not a positively good defence, he was entitled for unconditional leave to defend;that it is a settled proposition of law as held by the Hon'ble Apex Court in plethora of decisions that in the proceedings of summary suit, when plaintiff has come with a case, seeking interest, and there is no contract in existence between the parties in that regard, the claim of interest is a triable issue and solely on that ground, defendant is entitled to unconditional leave to defend.
Page 5 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined
6. Learned advocate Mr. Shah also submits that by raising triable issues it was imperative on the trial court to grant unconditional leave to the defendant, however, neither conditional nor unconditional leave was granted and the applicants have been denied this remedy of a full-fledged trial detrimental to the substantial justice.
7. In such circumstances, referred to above, learned advocate Mr. Shah prays that there being merit in this application, the same be allowed and the impugned judgment and order be quashed and set aside.
8. Learned advocate Mr. B.Y. Mankad appearing for the respondent, on the other hand, submits that the impugned order passed by the learned trial court is just, fair and reasonable and based upon the sound principle of law. The learned trial court has given a detailed reasonings at the time of deciding the said application. So far as the contention raised by the applicants-defendants that they were not provided with the original documents, he submits that the plaintiff-respondent has also filed a criminal complaint against the father of the applicants-defendants under the provisions of the Negotiable Instruments Act, which is pending for consideration before the competent court, and the original copies of the cheque as well as other important documents have already been placed by the plaintiff-respondent in the said proceedings, and therefore, at the time of institution of the suit, attested copies of those documents were placed on record, and as such, by no stretch of imagination, it can be said that the original documents have not been placed on record. He further submits that the applicants-defendants have Page 6 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined raised trivial aspects of the case to set up the defence which had been rightly turned down by the Trial Court, as the father applicants-defendants had raised a loan of Rs.33,00,000/- from the respondent-plaintiff, and had not paid the same despite the issuance of notice as per the provisions of the N.I.Act.
9. In such circumstances, referred to above, learned advocate Mr. Mankad prays that there being no merit in the present application, the same be rejected.
10. Heard learned advocates for the respective parties and perused the record.
11. The Hon'ble Apex Court in the case of IDBI Trusteeship Services Ltd. v. Hubtown Ltd., reported in (2017) 1 SCC 568, has laid down the following principles for the discretion to be exercised by the Trial Courts in such type of cases:
"17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see Page 7 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
12. The Hon'ble Apex Court, again, in the case of Sudin Dilip Talaulikar v. Polycap Wires Private Limited & Ors., reported in (2019) 7 Supreme Court Cases 577, has held that the ultimate objective of a summary Suit is expeditious disposal of commercial disputes and, when the defence discloses facts of prima facie fair and reasonable defence, unconditional leave has to be granted and it relates to the subjective satisfaction of the Court on the basis of the material that may be placed before it and when the Court is satisfied that the defence is plausible or probable and is not sham or moonshine, but still it has some doubt over the defence, then conditional leave may be granted to the Defendant. It was further observed by the Hon'ble Supreme Court in the aforesaid Judgment that in case of unconditional leave, subjective satisfaction of Court is Page 8 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined involved, whereas in conditional leave, element of discretion vests with the Court. This discretion is not absolute, but is required to be exercised judiciously, tempered with what is just and proper in the facts and circumstances of the case by maintaining delicate balance between the respective rights and contentions by not passing an order which may ultimately impede speedy resolution of dispute.
13. The another decision in the case of M/S V. K. Enterprises & Anr. v. M/S Shiva Steels, passed in Special Leave Petition (C) No. 25144 of 2009, decided on 4th of August, 2020, in Paragraph No.8, the Hon'ble Apex Court has held as under:
"8. Order XXXVII CPC has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. The Courts have consistently held that if the affidavit filed by the defendant discloses a triable issue that is at least plausible, leave should be granted, but when the defence raised appears to be moonshine and sham, unconditional leave to defend cannot be granted. What is required to be examined for grant of leave is whether the defence taken in the application under Order XXXVII Rule 3 CPC makes out a case, which if established, would be a plausible defence in a regular suit. In matters relating to dishonour of cheques, the aforesaid principle becomes more relevant as the cheques are issued normally for liquidation of dues which are admitted. In the instant case, the defence would have been plausible had it not been for the fact that the allegations relating to the interpolation of the cheque is without substance and the ledger accounts relating to the dues, clearly demonstrated that such dues had been settled between the parties. Moreover, the issuance of the cheque had never been disputed on behalf of the Petitioner whose case was that the same had been given on account of security and not for presentation, but an Page 9 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined attempt had been made to misuse the same by dishonest means."
14. At this stage, I may refer to and rely upon the decision of the Hon'ble Apex Court in the case of B.L. Kashyap & Sons Ltd. vs. JMS Steels & Power Corp., Civil Appeal No.379 of 2022, wherein while clarifying the law on leave to defend, it is held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. In the said case, it has been observed as under;
"5. In regard to the question of leave to defend, as noticed, the High Court has observed that the appellant would not be entitled to such leave because no triable issues were arising out of the defence sought to be taken by the appellant. The High Court has also observed that the defences were frivolous and vexatious; and were raised only in order to deny the just dues of seller of the goods, i.e., the plaintiff. According to the High Court, while applying the principles for grant of leave to defend, as delineated in the case of IDBI Trusteeship (supra), the appellant was not entitled to the leave to defend.
16. The High Court took note of the fact that the Trial Court relied upon the decision in Mechelec Engineers (supra) and observed that the applicable principles were those contained in the later decision of this Court in IDBI Trusteeship (supra). Having regard to the question at hand, it shall be worthwhile to read together the principles stated in the said two decisions of this Court.
16.1. In the case of Mechelec Engineers (supra), the principles for consideration of a prayer for leave to defend in a summary suit were laid down by this Court in Page 10 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined the following terms: -
"8. In Kiranmoyee Dassi Smt v. Dr J. Chatterjee [AIR 1949 Cal 479 :49 CWN 246, 253 : ILR (1945) 2 Cal 145.] Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17 CPC in the form of the following propositions (at p. 253):
"(a) If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
(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, yet, shews such a state of facts as leads to the inference that at the trial of the action be 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 defend but in such a case the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.
(d) If the defendant has no defence or the defence set-up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a Page 11 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined defence."
16.2. In the case of IDBI Trusteeship (supra), this Court modulated the aforementioned principles and laid down as follows: -
"17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.Page 12 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024
NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
17. It is at once clear that even though in the case of IDBI Trusteeship, this Court has observed that the principles stated in paragraph 8 of Mechelec Engineers' case shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception. Putting it in other words, generally, the prayer for leave to defend is to be denied in such cases where the defendant has practically no defence and is unable to give out even a semblance of triable issues before the Court.
17.1. As noticed, if the defendant satisfies the Court that he has substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bonafide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the Trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the Trial Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, where the proposed defence appear to be plausible but Page 13 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.
17.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave; and even in the case of a triable issue on a fair and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the Court's view that the defence is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court.
17.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any Page 14 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined genuine triable issue and the Court finds the defence to be frivolous or vexatious."
15. In the case of Zonal Manager Versus Akhilbhai B. Mehta, (Civil Revision Application No.160 of 2000) 2001(0) GLHEL-HC 214015, in a summary proceedings where the plaintiff claimed interest in absence of any contract thereof between the parties, the learned Single Judge has observed and held that claiming interest on the disputed amount is triable issue and therefore, the defendant is entitled to unconditional leave.
16. Thus, the principles of law discernible from the aforesaid decision is that if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the applicants-defendants are entitled to unconditional leave to defend. Even if the defendant raises triable issues but there is a doubt in the mind of the Court about the defendant's good faith or the genuineness of the triable issues, the trial judge may impose conditions both as to the time or mode of trial, as well as the payment into court or furnishing security. if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious.
17. Looking to the case at hand in the perspective of the tenants of law laid down by the Hon'ble Apex Court in the above referred decisions, it is noticed that the Trial Court, Page 15 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined while passing the impugned order, had rejected the application of the applicant- defendant, holding that the defence wished to be set up by the appellant-defendant with regard to non- production of the original documents is a trivial and, as such, the defence set up was held to be moonshine, without calling for any plausible defence.
18. In my considered opinion, assuming for a moment that the defence wished to be set up by the applicants-defendants was not a clear-cut defence, however, the defence raised by them also did not seem to be moonshine and appeared to be a plausible defence, inasmuch as, they had raised the triable issues by submitting that they should be given an opportunity to defend as they have made specific assertion that no such amount was indebted to the plaintiff-respondent, and the plaintiff-respondent, in support of his claim, has not produced any original documents on the record of the suit. Even the applicants-defendants also did not provide with such set of documents. The applicants-defendants have also strongly emphasized upon the fact of non-execution or non-production of any agreement in respect of the financial transaction took place between the respondent-plaintiff and the father of the applicants-defendants. All these contentions raised by the applicants-defendants before the trial court, in the considered opinion of this Court, were plausible and, as such, they had raised triable issues. Insofar as the nature of permission is concerned, the applicants-defendants are entitled to leave, whether conditional or unconditional, whichever the learned trial court deems appropriate to grant. Thus, I am of the opinion that the trial court, while passing the impugned order, Page 16 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024 NEUTRAL CITATION C/SCA/1466/2024 JUDGMENT DATED: 07/10/2024 undefined has erroneously taken the view that there was no triable issue raised by the applicants-defendants in his defence and, therefore, the same requires interference at the end of this Court, while exercising inherent jurisdiction.
19. In view of what is observed herein above, coupled with the mandate of law as enunciated by the Hon'ble Supreme Court, the present application is allowed and the impugned order dated 08.01.2024 passed below Exh.14 in Special Summary Suit No.01 of 2022 by the learned Principal Senior Civil Judge, Nakhatrana-Kachchh is set aside. The applicants- defendants are granted leave to defend the summary suit. However, it is left open for the trial court to decide the nature of the condition, whether to grant conditional leave or unconditional leave, subject to its satisfaction. The trial court then proceed further with the matter on its on merit without being influenced, in any manner, with any of the observations made herein above in this order. Rule is made absolute to the aforesaid extent. No order as to costs.
(DIVYESH A. JOSHI,J) VAHID Page 17 of 17 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Oct 25 2024 Downloaded on : Sat Oct 26 22:04:29 IST 2024