Gujarat High Court
M/S Bla Packaging Industries Pvt. Ltd vs Adyah Bizolutions on 10 April, 2023
NEUTRAL CITATION
C/SCA/10787/2022 ORDER DATED: 10/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10787 of 2022
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M/S BLA PACKAGING INDUSTRIES PVT. LTD.
Versus
ADYAH BIZOLUTIONS
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Appearance:
MR KUNAL J VYAS WITH MR DEVARSH U TRIVEDI for
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1
MR JIGAR D DAVE(6528) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/04/2023
ORAL ORDER
1. The present petition is filed by challenging the impugned order dated 13.05.2022 passed below Exh.21 application in Special Civil Suit No.50 of 2022 (Old th Summary Suit No.12 of 2020) by the Trial Court - 4 Addl. Senior Civil Judge, Ahmedabad (Rural), by which the Trial Court has permitted the respondent herein to accept the security by way of Rs.7.50 lakhs of L.I.C. Policy and papers of Car towards security pursuant to the order dated 28.04.2022 passed by this Court in Special Civil Application No.6598 of 2022, and therefore, the present petition is preferred.
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NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined 2.1 Brief facts of the case are as such that petitioner is a company registered under the provisions of the Companies Act, 1956 (now governed by Companies Act, 2013) having its registered office at the address mentioned in the captioned petition. The petitioner is engaged in the business of manufacturing and supplying of various types of packaging materials. The respondent is the sole proprietorship concern of Mrs. Amrita Surendra Singh Khushwah and is engaged into business of trading of packaging material. It is further the case of the petitioner in the present petition that pursuant to the negotiations and discussions between the parties, the respondent placed orders with petitioner for a total 23,000 Kgs. of laminated rolls of the specification which were particularly stated in the purchase orders. It is the case of the petitioner in the present petition that the purchase orders were sent as an attachments to the e- mails sent by respondent and petitioner accepted the said purchase orders. On acceptance thereof, the purchase orders culminated into written contract binding between both the parties.
2.2 The respondent, at the time of placing the said Page 2 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined purchase orders, had informed the petitioner that the said goods were ordered by the respondent for further supply to Respondent Client/Customer namely M/s. Ayoni Foods Pvt. Ltd. As per the instructions in the said purchase order, petitioner delivered the said goods on time directed to M/s. Ayoni Foods Pvt. Ltd in month of April, 2019. Thereafter, the petitioner raised total 12 invoices on the respondent for the supply of the said goods for a sum of Rs.73,79,958. The respondent made a part payment of Rs.27,54,359/- only and failed to make payment for the remaining amount against the said invoices, and therefore, petitioner filed the Summary Suit No. 12 of 2020 before the Ld. Commercial Court, Ahmedabad (Rural) against the respondent for recovery of Rs.42,11,072/-.
2.3 Thereafter, the respondent filed an application below Exh.6 praying for leave to defend the suit. Thereafter, the petitioner filed its rejoinder to leave to defend application below Exh.11. Thereafter, an order was passed by learned Judge below Exh.6 granting leave to the respondent to defend the suit with a condition to deposit 25% of the claimed amount within a period of 2 Page 3 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined months i.e. on or before 01.04.2022. Thereafter, the respondent filed Special Civil Application No.6598 of 2022 before this Court challenging the said order dated 02.02.2022. The respondent also filed an application before learned District Court below Exh.18 seeking an extension of time to comply with the condition of depositing the amount and it the the case of petitioner in the present petition that despite its efforts, he could not arrange the funds for depositing the amount. The respondent thus accepted the said order and undertook to deposit the amount. Thereafter, the Ld. Court partly allowed the Application below Exh. 18 and extended the time period for depositing the amount by 4 weeks and directed that the amount towards security be deposited on or before 01.05.2022. It is further the case of the petitioner in the present petition that despite the extension having been granted, respondent failed to deposit the said amount. Further, in the proceedings before this Court in Special Civil Application No.6598 of 2022, the counsel for the respondent made a statement at bar that the respondent is ready and willing to secure the amount, however, the learned Court is demanding cash amount for such deposit and request was made to Page 4 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined this Court to clarify that instead of cash amount, security be accepted. Accordingly, the this Court vide Order dated 28.04.2022 clarified that instead of cash amount, security should be accepted.
2.4 It is further the case of the petitioner in the present petition that the respondent filed an application below Exh.21 proposing to secure the suit amount in compliance of the directions of the this Court by furnishing documents pertaining to a Hyundai Creta Car owned by the proprietor of the respondent in the year 2016 and a Life Insurance Policy obtained by the respondent. The petitioner raised serious objections to such security being offered by the respondent and submitted that the period for furnishing security expired on 01.05.2022 and that thereafter, no security can be accepted. However, the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) allowed. Thereafter, the present petition is preferred.
3. Heard learned advocate Mr. Kunal J. Vyas with Mr. Devarsh U. Trivedi, learned advocate appearing for Gandhi Law Associates for the petitioner and learned Page 5 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined advocate Mr. Jigar D. Dave for the respondent. 4.1 Learned advocate Mr. Vyas appearing for the petitioner has submitted that by virtue of order dated 02.02.2022 below Exh.6 application by the Trial Court, the Court has directed the respondent to deposit 25% of the claimed - suit amount of Rs.42,11,072/- and thereafter, being aggrieved by the said order, the respondent herein has preferred Special Civil Application No.6598 of 2022, whereby the Court by order dated 28.4.2022 has directed the respondent herein to furnish security in place of 25% amount which shall be deposited as per the earlier order passed by this Court "within stipulated time period" but the present respondent has filed the application below Exh.21 on 13.05.2022 and has prayed to furnish security by way of furnishing papers of Car as well as Rs.7.50 lakhs of L.I.C. Policy towards security in lieu of 25% of the suit amount of Rs.42,11,072/- to comply with the earlier order passed by the learner Trial Court for granting the conditional leave to defend, to which the respondent herein has deliberately not complied with and has filed such application which the Court has accepted by way of Page 6 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined impugned order dated 13.05.2022 as there is no provision under the provisions of Order XXXVII of the Civil Procedure Code, 1908 under which the Court can accepted papers of car towards security and moreover, he has submitted that even on merits also, the respondent has no case whatsoever as he is having direct relation with the present petitioner as he has placed the order to the present petitioner and is making necessary transaction towards the payment of the petitioner and merely because he is placing the order on behalf of the other parties but orders are placed in his name, and therefore, there is privity of contract between the present petitioner as well as respondent and respondent cannot escape from his liability by making excuse that he is merely agent and he has placing order on behalf of the parties and there is no privity of contract.
4.2 He has further relied upon the judgment of the Bombay High Court in the case of A.B. & U
Communication P. Ltd. Versus Jitu reported in 2009 (3) Mh.L.J. 579 and has submitted that when the Summons for Judgment is decided on merits and when the defendant is directed to deposit certain amount of money Page 7 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined as a condition precedent and is ordered to file written statement subject to compliance of those directions, the Court wants that defendant should comply with those terms and conditions. If the defendant does not comply with the order passed passed at the stage of disposal of Summons for Judgment in Order 37, it will be deemed that defendant has no defence and that the case of plaintiff is required to be decided on merits, and therefore, he has submitted that since the defendant has not yet complied with the direction given by the Court and such application, which is filed at exhibit 21 application, is also filed at belated stage, the Trial Court has committed gross error in allowing such application. He has heavily relied upon paragraph 9 of that judgment.
4.3 He has further submitted that since the respondent herein has neither complied with the order passed by the City Civil Court of depositing 25% of the suit amount nor has complied the direction of this Court in Special Civil Application No.6598 of 2022 in his true letter and spirit and also within stipulated time, and therefore, the Court has to close the right of the respondent to file Page 8 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined return statement and to proceed with the suit proceeding on merits, and therefore, he has prayed to quash and set aside the impugned order passed by the Trial Court by exercising the powers under Article 227 of the Constitution of India.
5.1 Per contra, Mr. Jigar Dave appearing for the respondent has strongly objected such prayer and has submitted that the Court can always consider the same and more particularly, when this Court has directed the Trial Court to accept the security and in fact, the Court has passed the order by accepting the security, which is furnished by respondent herein then there is no question to pass any adverse order to the same. The court has always discretion to consider that what should be accepted towards security and when respondent herein is tendering the amount of Rs.7.5 lakhs towards L.I.C. Policy plus papers of Car having worth approximately Rs.14 lakhs, the petitioner should not have difficulty. He has further submitted that the petitioner should not take any hyper-technical defence.
5.2 He has heavily relied on the judgment of the Page 9 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined Hon'ble Apex Court in the cases of (i) B.L. Kashyap and Sons Ltd. Versus JMS Steel and Power Corporation reported in 2022 (3) SCC 294, (ii) R. Saravana Prabhu and Another Versus Videocon Leasing and Industrial Finance Ltd. and Another reported in 2013 (14) SCC 606, and has submitted that as such, there is no privity of contract between the present petitioner and respondent herein and as respondent was just working as agent of the parties and was just forwarding the request for goods and in turn, the petitioner were sending goods directly to the parties then there is no nexus between the petitioner and respondent herein. 5.3 He has further submitted that thereafter, petitioner has preferred application being Special Civil Application No.6598 of 2022 before this Court and this Court by order dated 28.4.2022 has passed the order by directing the petitioner to furnish security of amount to the extent of 25% but the Court has not specified what is to be given by way of security, and therefore, he has submitted that this Court has not committed any error by accepting the security which is furnished by the present petitioner.
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NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined
6. I have heard learned advocates for the parties. I have considered the documents available on record. Considering the fact that the present petition is filed for the limited purpose only by challenging the impugned order dated 13.05.2022 passed below Exh.21 application in Special Civil Suit No.50 of 2022 by the Trial Court, this Court is of the opinion that ends of justice would meet if the impugned order dated 13.05.2022 passed by Trial Court is quashed and set aside and with a further direction that the learned Trial Court shall decide such application filed below Exh.21 in Special Civil Suit No.50 of 2022 after hearing both the parties in accordance with law by giving opportunities to both the parties to make submissions and the same shall be decided as expeditiously as possible, preferably within a period of 3 weeks from the date of receipt of copy of the order passed in the present processing.
7. With the above direction, the present is allowed, and final order passed as under:-
7.1 The impugned order dated 13.05.2022 passed below Exh.21 in Special Civil Suit No.50 of 2022 (Old Page 11 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023 NEUTRAL CITATION C/SCA/10787/2022 ORDER DATED: 10/04/2023 undefined th Summary Suit No.12 of 2020) by the Trial Court - 4 Addl. Senior Civil Judge, Ahmedabad (Rural) is quashed and set aside.
7.2 The learned Trial Court concerned is directed to consider the application filed below Exh.21 in Special Civil Suit No.50 of 2022 afresh, by giving proper opportunities to both the parties, and without being influenced by the earlier order passed by this Court as well as earlier order passed by the Trial Court, in accordance with law.
7.3 It is clarified that the rights and contentions of the parties, which is agitated in the present proceedings, as well as other contentions available under the provisions of law are kept open and this Court has not expressed anything on the aspect of the merits of the matter.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 12 of 12 Downloaded on : Sun Sep 17 18:23:30 IST 2023