Gujarat High Court
Sustain Fiber Llp vs Sarvodaya Seva Samiti on 31 July, 2025
NEUTRAL CITATION
C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10551 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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SUSTAIN FIBER LLP & ANR.
Versus
SARVODAYA SEVA SAMITI & ORS.
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Appearance:
MR MEHUL M MEHTA(3416) for the Petitioner(s) No. 1,2
RAVI B SHAH(5346) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 31/07/2025
ORAL JUDGMENT
1. Heard learned advocate Mr.Mehul M. Mehta for the petitioners and learned advocate Mr. Saurabh M. Patel with learned advocate Mr.Ravi B. Shah for the respondent.
2. The presented application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"a) Your Lordships may be pleased to admit and allow this Special Civil Application.
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b) Your Lordships may be pleased to issue appropriate writ, order or directions to quash and set aside the order dated 13/06/2025 passed below Exh. 20, by the Learned 2nd senior Civil judge Ahmedabad (Rural) in case (SMST) special summary suit no. 139/2018, (ANNEXURE - A).
c) Pending admission hearing and final disposal of this petition your Lordships may be pleased to stay order dated 13/06/2025 passed below Exh. 20, by the Learned 2nd senior Civil judge Ahmedabad (Rural) in case (SMST) special summary suit no. 139/2018, (ΑΝNEXURE - A).NEXURE - A).
d) Your lordships may be pleased to pass any other appropriate and just order/s in the interest of justice."
3. THE SHORT FACTS OF THE CASE 3.1. The petitioners herein are original defendant nos. 1 and 2, whereas respondent no. 1 herein is the plaintiff and the rest of the respondents are partners of the petitioner no. 1 - firm.
3.2. The Special Summary Suit No. 139 of 2018 came to be filed against the petitioners, wherein summons for judgment was served upon them, against which, leave to defend application came to be filed.
3.3. After hearing the parties, the Trial Court, vide its impugned order dated 13.06.2025, granted conditional leave to Page 2 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined defend the suit whereby it directed the petitioners to deposit 50% of the amount claimed in the suit.
4. Being aggrieved and dissatisfied with the aforesaid impugned order, the present writ application is filed by original defendant nos. 1 and 2 only.
5. SUBMISSIONS OF THE PETITIONERS-DEFENDANT NOS. 1 AND 2 5.1. Learned Advocate Mr. Mehta would submit that there was no privity of contract between the plaintiff and defendant no. 1 - firm, inasmuch as there is a specific denial of the receipt of the goods from the plaintiff, thereby the question of any amount due and payable would not arise at all. 5.2. Learned advocate Mr. Mehta would submit that there are several triable issues which were raised by the defendants which were completely overlooked by the Trial Court while imposing a condition upon the defendants to defend the summary suit filed by the plaintiff.
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5.4. So, according to learned advocate Mr. Mehta, the petitioners herein are entitled to and ought to have been granted unconditional leave to defend the suit. 5.5. In support of his submissions, learned advocate Mr. Mehta would rely upon the following two decisions:-
I. Mechelec Engineers And Manufacturers Vs. Basic Equipment Corporation, reported in (1976) 4 SCC 687; II. R. Saravana Prabhu and Another vs. Videocon Leasing and Industrial Finance Limited and Another reported in (2013) 14 SCC 606.
5.6. Making the above submissions, learned advocate Mr.Mehta would request this Court to allow the present writ application.
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6. SUBMISSIONS OF THE RESPONDENT 6.1. Learned advocate Mr.Patel with learned advocate Mr.Ravi B. Shah appearing for the plaintiff would submit that the present writ application is nothing but a misuse of the process of law by defendant nos. 1 and 2, inasmuch as without making out any specific defence, a general denial was given by the defendants when filed the leave to defend application. 6.2. Learned advocate Mr. Patel would further submit that prior to the filing of the suit, a demand notice/letter came to be served upon the defendants on 01.08.2018 and 09.08.2018 through R.P.A.D. post and the same was not replied to. 6.3. It is further submitted that copies of both these letters were produced on the record of the suit and there is no specific denial given by the defendants in regard to the same. 6.4. Learned Advocate Mr. Patel would submit that the plaintiff has already supplied the goods and the defendants have failed to pay the amount as per the demand, thereby cause arose for the plaintiff to file summary suit, which is Page 5 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined maintainable in law and, as such, there is no triable issue raised by the defendants, whereby they can claim unconditional leave as alleged.
6.5. Learned advocate Mr. Patel would further submit that this Court, while exercising its power under Article 227 of the Constitution of India, may not disturb the order passed by the Trial Court, which is discretionary in nature and as such, the impugned order is neither erroneous, perverse nor arbitrary in nature.
6.6. Learned advocate Mr.Patel would submit that the jugdments, which are cited by the learned advocate Mr.Mehta is no longer a good law and as such, without checking the correct position of law, that has been cited and thereby, the same be ignored.
6.7. To buttress his arguments, learned advocate Mr. Patel would rely upon the following two decisions:-
I. IDBI Trusteeship Services Limited vs. Hubtown Limited reported in (2017) 1 SCC 568;
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6.8. Making the above submission, learned advocate Mr.Patel would request this Court to dismiss the present writ application.
7. No other and further submissions are made.
8. POINT FOR DETERMINATION 8.1. The short question that falls for my consideration as to whether, in the facts and circumstances of the case, is there any gross error of law committed by the Trial Court while granting conditional leave to defend the suit by directing the petitioners to deposit 50% of the amount involved in the suit?
9. ANALYSIS
10. The facts, which are noted hereinabove, are not in dispute. Prima facie, it appears that except for general denial of the facts by the defendants in their leave to defend application, there is no case set up by the defendants which would entitle them to get unconditional leave. Page 7 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025
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11. What is required to be considered by the Trial Court while examining leave to defend application is as to whether a triable issue is germane in the matter or not. If the answer is in the affirmative, the defendant is entitled to unconditional leave; otherwise, it is a discretion available with the Trial Court to impose some condition while permitting defendant to defend the suit.
12. Such issue is no longer res integra, having been clarified in so many words by the Hon'ble Supreme Court in the case of IDBI Trusteeship (supra), wherein, it has been held thus:-
"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 Page 8 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined 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.
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."
(emphasis supplied)
13. As such, the judgment, which has been cited by the learned advocate for the petitioners, i.e., Mechelec Engineers (supra), would not be applicable to the case at hand and, as such, the judgment of Mechelec Engineers (supra) stands superseded after the amendment in Order XXXVII, Rule 3 of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC'), as observed by the Hon'ble Supreme Court of India in the case of IDBI Trusteeship (supra).
14. Then, another judgment cited by learned advocate Mr. Mehta, i.e., R. Saravana Prabhu (supra), was passed on the Page 9 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined basis of the law laid down in Mechelec Engineers (supra), which has now already been superseded as observed hereinabove.
15. Thus, both the decisions, which are cited by the learned advocate Mr.Mehta appearing for the petitioners would not be applicable and as such, this legal aspect of the case ought to have been first considered by him before citing the same before the Court. Learned advocate Mr.Mehta requires to take note of the fact that whenever any judgment cited before the Court, whether it stands as on date or not is required to be first checked. As every advocate is an officer of the Court, it is his/her duty not to cite any judgment which is either overruled or superseded.
16. At this stage, considering the first mistake on the part of Mr. Mehta, nothing more is stated by this Court.
17. Now, coming back to the facts of the present case, as discussed hereinabove, except for general denial by the defendants, nothing is set up by them in support of their Page 10 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined defence while submitting their leave to defend application. It is not even clarified by the defendants in their leave to defend application whether the demand notices/letters dated 01.08.2018 and 09.08.2018 had been received by them or not.
18. Prima facie, such demand notices, having not been replied by the defendants, would indicate that there was a business transaction between the plaintiff and the defendant - firm. Of course, as observed by the Trial Court, so far as such claim is concerned, it requires to be proved by the plaintiff by leading appropriate evidence. But when, prima facie, it has come on record that goods were dispatched by the plaintiff and there was demand raised by the plaintiff from the defendants by way of the aforesaid demand letters/notices, which remained unanswered, such fact would go against the defendants in the absence of any specific denial.
19. Thus, according to this Court also, the case of the defendants would fall in the category that any defence set up by defendants may be plausible, i.e., that they have not received the goods, but it is improbable in absence of any Page 11 of 12 Uploaded by MOHD MONIS(HC01900) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:31:31 IST 2025 NEUTRAL CITATION C/SCA/10551/2025 JUDGMENT DATED: 31/07/2025 undefined other material particulars on record submitted by the defendants, especially when they have not replied to the said demand letter and notice.
20. In that situation, as per the judgment of the Supreme Court in the case of IDBI Trusteeship (supra) (para 17.4), the defendants can be allowed to defend the suit, subject to the condition which is put by the Trial Court.
21. In view of the aforesaid, I am in complete agreement with the view taken by the Trial Court, which is not found to be either erroneous, perverse, arbitrary, or contrary to any provisions of law.
22. CONCLUSION 22.1. Thus, the upshot of the aforesaid observations, discussion and reasons would lead to only one conclusion that the present writ application is bereft of any merits and requires to be dismissed, which is hereby DISMISSED. No order as to costs.
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