Karnataka High Court
Arambhan Hospitality Services Limited vs Metro Cash on 28 April, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.5164/2020(GM-CPC)
BETWEEN:
ARAMBHAN HOSPITALITY SERVICES LIMITED
(FORMERLY KNOWN AS CAWASJIBEHRAMJI
CATERING SERVICES LIMITED)
A COMPANY INCORPORATED
UNDER THE PROVISIONS
OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
# 201,/202 BENSTON, B WING,
SHERLY RAJAN ROAD,
BANDRA (W), MUMBAI - 400 050.
ALSO AT:
#17, BAHUBALI BUILDING
CAWASJI PATEL STREET FORT,
MUMBAI - 400 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
... PETITIONER
(BY SRI.ASHOK HARANAHALLI, SR.COUNSEL FOR
SRI.SIDDARTH MUCHANDI, ADV)
AND:
METRO CASH & CARRY INDIA PRIVATE LIMITED
2
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE
AT SURVEY NO.26/3, 'A' BLOCK
WARD NO.9, INDUSTRIAL SUBURBS
SUBRAMANYANAGAR
BENGALURU-560 005
REPRESENTED BY ITS HEAD
FINANCE & CONTROLLING
MR.BADARI PRASAD T.S.
... RESPONDENT
(BY SRI SAJAN POOVAYYA SR. COUNSEL FOR
MS.SANJANTHI SAJAN POOVAYYA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 02.01.2020 PASSED IN I.A.NO.2 TO 6 IN
COM.O.S.NO.3211 OF 2017 PENDING BEFORE THE HON'BLE CCH83
LXXXII ADDL.CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL
COURT) PERMIT THE PETITIONER TO CONTEST THE CASE BY
FILING A WRITTEN STATEMENT.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 09/03/2020 COMING ON FOR PRONOUNCEMENT THIS DAY,
THROUGH VIDEO CONFERENCE THE COURT MADE THE
FOLLOWING:
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ORDER
Petitioner who is defendant in Com.O.S. No.3211/2017 is before this Court under Article 227 of the Constitution of India, assailing the order dated 02.01.2020 passed on I.A.Nos. 2 to 6, by which, leave was granted to defend the suit with a condition to deposit Rs.3,00,00,000/- before the Court within one month and suit is ordered to be tried as a regular suit.
2. Petitioner is defendant and respondent is plaintiff in the above stated suit. They would be referred to as they stand before the trial Court.
3. The plaintiff, a Company incorporated under the Companies Act, 1956, by name Metro AG Wholesale and Food Specialist Company preferred summary suit under Order 37 of CPC against the defendant for recovery of a sum of Rs.6,40,97,104/-, being the aggregate of Rs.4,83,26,543/- and interest of Rs.1,57,70,561/- as on 24th April 2017 4 together with pendentelite future interest at the rate of 18% on the principal amount. The plaint averments would disclose that the defendant purchased goods sold by the plaintiff vide various bills of exchange (for short 'BOE')/sales bill discounting facility, wherein the defendant by signing the BOE acknowledge the fact that it has received goods in good condition from the plaintiff and agreed to pay the amount due to PNB Paribas Bank, within a period of 90 days from the date of BOE along with interest. Further, the plaint would disclose that the defendant purchased the goods from the plaintiff's stores in Mumbai. It is also stated that original bills of sale are in the custody of Bank and the plaintiff has sought leave to produce the said bills of sale at a subsequent stage, producing Xerox copies of the BOEs. As the defendant failed to make payment to the Bank as per the BOEs, the Bank debited a sum of Rs.4,75,93,907/- from the plaintiff's current account along with interest. On account of defendant's failure to make payment of the above said amount, the plaintiff was 5 constrained to file the above stated suit for recovery of the amounts due by the defendant along with interest.
4. Suit summons as required under Rule 2 of Order 37 was served on the defendant. The defendant received the summons and copy of the plaint. On receipt of the summons, the defendant filed I.A.Nos. 2 to 6.
5. I.A.No.2 was filed requesting to treat the summary suit as regular suit for trial by allowing to file written statement. I.A.No.3 was filed under Order 37 Rule 3(5) of CPC requesting to grant leave to defend the suit by way of filing written statement. I.A.No.4 was filed under Section 151 of CPC seeking permission to file rejoinder by way of additional affidavit in support of application seeking leave; I.A.No.5 was filed under Section 151 of CPC to recall the order dated 11.01.2018 posting the matter for hearing. I.A.No.6 was filed under Order 6 Rule 14 read with Order 29 Rule 1 of CPC to 6 dismiss the summary suit which is filed by the plaintiff without due authorization.
6. The defendant contended that the suit would not fall under Order 37 of CPC and procedure prescribed under Order 37 is not followed. The defendant further contended that the documents filed along with the plaint were not served on the defendant as such, the defendant is not in a position to file effective defense. Plaintiff has not filed original documents at the time of filing suit and only Xerox copies of the documents relied have been placed on record. Further it is contended that there is no bill of exchange so as to attract the provisions of summary suit. The defendant never entered into any contract with the plaintiff and the Courts at Bengaluru have no jurisdiction since the transaction has taken place at Mumbai. In I.A.No.6, the defendant prays for dismissal of the suit as the same is instituted without due authorization as required under the Code of Civil Procedure. The person who has filed the suit has no authorization and no resolution authorizing to 7 file suit is placed on record. Moreover, no averment with regard to authorization is forthcoming from the plaint averments.
7. The plaintiff filed objections to the applications contending that the defendant has no defense to the suit claim. The defense of the defendant is sham and moonshine. Defendant is not entitled for leave to defend merely on the ground of non-furnishing of copies of documents and defendant could not produce certified copies of the documents. The defendant purchased goods from the plaintiff vide BOE/sales bill discounting facility by signing the bills of exchange. Further, the defendant has admitted that he would remit the bill amount to the Bank. The plaintiff in his objection to I.A.No.6 stated no objection to I.A.Nos.4 and 5. Further the plaintiff contended that Board resolution authorizing Mr.Badri Prasad T.S. to file suit is produced along with the suit.
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8. The trial Court, on consideration of I.A.Nos.2 to 6, allowed I.A.No.2 to 5 granted leave to defend with a condition to deposit Rs.3,00,00,000/- within one month and dismissed I.A.No.6. Aggrieved by the condition to deposit Rs.3,00,00,000/- and dismissal of I.A.No.6, the defendant is before this Court in this writ petition.
9. Heard the learned Senior counsel Sri.Ashok Harnahalli along with Siddarth Muchandi for petitioner/defendant and Sri.Sajan Poovaiah, Senior Counsel for respondent/plaintiff. Perused the writ petition papers.
10. Learned Senior Counsel would submit that the suit as filed would not fall under Order 37 of the Code of Civil Procedure. Further, he would submit that Order 37 Rule 3 (1) requires service of summons under Rule 2 on defendant along with copy of the plaint and Annexures thereto. In the instant case, only summons and copy of plaint without Annexures was served on the defendant. He further contends that unless the 9 plaintiff produces original documents on which the suit is based, the summary suit would not be maintainable. It is his submission that only Xerox copies have been placed on record and no reasons have been assigned as to why the originals are not produced. In support of his contention, learned Senior Counsel relies upon the decision of the Hon'ble Apex Court reported in (2008) 3 SCC 770 in the case of NEEBHA KAPOOR v/s JAYANTILAL KHANDWALA AND OTHERS. Learned Senior Counsel further contends that, the trial Court having come to the conclusion that there is triable issue, could not have imposed unreasonable condition of deposit of Rs.3,00,00,000/-. The trial Court has wrongly understood the additional affidavit dated 02.07.2018 filed on behalf of defendant and come to the conclusion that there is admission on the part of the defendant with regard to the claim made by the plaintiff. He submits that in the affidavit, the defendant has made it clear that the defendant had made certain payments to the plaintiff, which the plaintiff had suppressed in 10 his plaint. But it would not amount to admission of the claim of the plaintiff. With regard to I.A.No.6, learned Senior Counsel submits that nowhere in the plaint, it is stated about the authorization or resolution of the Board authorizing Mr.Badri Prasad T.S., to file the instant suit. Even the resolution is not produced even though index indicates the same. Further learned Senior Counsel also relies upon the decision of the Hon'ble Apex Court reported in (2017) 1 SCC 568 in the case of IDBI TRUSTEESHIP SERVICES LIMITED v/s HUBTOWN LIMITED and submits that when the defendant has made out substantial defense, the trial Court ought to have granted leave to defend unconditionally.
11. Per contra, learned Senior Counsel Sri.Sajjan Poovaiah submits that the trial Court rightly granted conditional leave to defend. He submits that the defendant being one of the customers of the plaintiff purchased goods between the periods from 26.12.2014 to 27.5.2015 vide BOE/sales bill discounting facility, agreeing to pay the amount due under 11 BOE to PNB Paribas Bank. As the defendant failed to make payment to the Bank as per the BOEs, the Bank debited the amount along with interest. He further submits that by letter dated 30.09.2016, the defendant unconditionally accepted that the payments were due from defendant to the plaintiff and promised to make payment. Learned Senior Counsel further submits that no triable defense is put forth, however, the trial Court granted leave with condition, directing the defendant to deposit Rs.3,00,00,000/- referring to additional affidavit of the defendant dated 02.07.2018. It is submitted that the defendant had admitted the transaction and affidavit indicates part payment made by defendant to the plaintiff. Without there being transaction, the defendant would not have made any payment. The learned Senior Counsel relying upon paragraphs 17.3 and 17.6 of HUBTOWN LIMITED (supra) justifies the order passed by the trial Court and prays for dismissal of the writ petition.
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12. The Hon'ble Supreme Court in a case reported in AIR 1958 SC 321 in the case of SANTHOSH KUMAR v/s BHAI MULSINGH considering Order 37 of CPC observed that it is the discretion of the Court to grant leave or not and the test is to see whether the defense raises a real issue and not a sham one. The relevant portion at paragraph 10 reads as under:
"10. It is always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion. But it is necessary to understand the reasons for a special procedure of this kind in order that the discretion may be properly exercised. The object is explained in Kesavan v/s South India Bank Ltd., ILR (1950) MAD 251 (AIR 1950 MAD 226) (K), and is examined in greater detail in Sundaram Chettiar V/S Valli Ammal, (F), (supra) to which we have just referred. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defenses in a class of cases where speedy decisions 13 are desirable in the interest of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts."
13. The Hon'ble Supreme Court in a latest decision reported in HUBTOWN LIMITED (supra) considering Order 37 of CPC and considering the earlier decisions summarized the principles 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 plaintiffs 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 plaintiffs is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.14
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 cause 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.15
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 the due is deposited by the defendant in Court."
14. In the light of the principles laid down in the above decisions, the facts of the present case will have to be examined.
15. The first contention urged by the learned Senior Counsel appearing on behalf of petitioner/defendant is that along with suit summons in Form No.4 only plaint copy was enclosed and no documents were enclosed. Order 37 Rule 3(1) of CPC reads as follows:
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"3. Procedure for the appearance of defendant (1): In a suit to which this order applies, the plaintiffs shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and Annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notice on him."
16. The above provision makes it clear that along with the summons, copy of the plaint, Annexures thereto shall be served on the defendant. In the instant case, the trial Court, on scrutiny of the records and on examination of the returned RPAD cover tentatively concluded that only plaint copy was enclosed to the summons without the Annexures. Hence, this defense being one of the plausible defense available to the plaintiff.
17. The petitioner/defendant also contended that the plaintiff failed to produce original documents on which, the suit claim is 17 based and only Xerox copies are produced which would not satisfy the requirement of Order 37 of CPC. The trial Court on scrutiny of the material placed on record has come to the conclusion that except one document, all other documents are Xerox copies on which it is very difficult to pass judgment and decree in the summary suit. The learned Senior Counsel relied upon the Hon'ble Apex Court in the case of NEEBHA KAPOOR v/s JAYANTILAL KHANDWALA AND OTHERS reported in (2008) 3 SCC 770. The relevant portion at paragraph 11 reads as follows:
"11. For the purpose of obtaining a summary judgment in terms of Order 37 of the Code, ordinarily the original documents must produced. Original documents are not available. The appellant, therefore, is obliged to prove the loss of documents. Only because a suit has been entertained as a summary suit, the same by itself may not be a ground for passing of a judgment on mere asking. We have noticed the fact situation obtaining herein. The High Court was of the opinion that it is a case where unconditional leave should be 18 granted. The question as to whether the defence of the respondents is "moonshine" or not was not a matter which required consideration of the High Court at that stage. A decree could not have been granted on the basis of even Photostat copies of the documents. ...................................."
18. The Hon'ble Apex Court observed that ordinarily the original documents must be produced. But in the instant case, it is an admitted fact that except one document all other documents are Xerox copies. But in the plaint, the plaintiff has explained that all original bills of sale are in the custody of the Bank and sought leave of the Court to produce the said bills of sale at a subsequent stage. When it is the allegation that the transaction between the parties is through BOE from PNB Paribas bank, the statement of the plaintiff that the original documents are with the Bank is to be accepted at this stage. Moreover, the original documents are required if the summary suit is to be decreed.
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19. The defendant/petitioner herein raised contention with regard to jurisdiction of the Court to try the suit. It is stated that transaction between the parties took place at Mumbai. Plaintiff's head office is at Mumbai and defendant is in Mumbai. The said contention with regard to territorial jurisdiction is a matter for trial and the same would be one of the real defence of the defendant. Unless the materials are placed on record, the contention with regard to jurisdiction cannot be gone into at this stage.
20. The defendant also contended that the petitioner is a Company and the suit is filed by its Head, Finance and Controlling Mr.Badriprasad T.S. But, no authorization, authorizing the said person to file suit is placed on record. The trial Court, on scrutiny of the entire records of the suit has come to the conclusion that even though Index indicates the Board resolution authorizing Sri.Badriprasad to sign plaint and file suit on behalf of the plaintiff, the same has not been produced. As the authorization is not produced, the defendant 20 had filed I.A.No.6 to dismiss the suit. Only on this ground, at this stage, it is not proper to dismiss the suit. Whether there is authorization from the Board to file the suit by Mr.Badriprasad or not is a matter for trial and the defense or contention raised by the defendant forms a triable issue. Hence, the trial Court is justified in rejecting I.A.No.6.
21. From the above discussion and the defense raised by the defendant, I am of the view that defense or contentions raised on behalf of the defendant are triable issues. If the facts alleged by the defendant are proved, it would be plausible defence. The defence set up by the defendant is not sham, moonshine or illusory. The trial Court also rightly concluded that the defendant has made out defense on which leave is to be granted to defend the suit. Having come to the conclusion that the defendant has made out a case for grant of leave to defend, the only question which remains to be answered is as to whether the leave is to be granted with condition or without condition.
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22. To examine the above said question it becomes very relevant to peruse the additional affidavit dated 02.07.2018 filed by the defendant. The affidavit is by one of the directors of the defendant. The affidavit clearly admits the transactions between the plaintiff and defendant. At paragraph 3 of the affidavit it is stated that "the defendant admittedly has bought the goods from the Mumbai office of the plaintiff." Further in the same paragraph it is stated that "the sales bill discounting facility with PNB Paribas Bank is availed by the plaintiff as it is plaintiff's Banker........". Paragraphs 5 to 10 of the affidavit reads as under:
"5. I state that the defendants have paid substantial amounts to the plaintiff and do not admit the claim of the plaintiffs. The plaintiffs has suppressed and misrepresented material facts. Although the defendants have paid substantial amounts to plaintiff, the plaintiff has suppressed such payments and made false claims.22
6. I state that the plaintiff has claimed a sum of Rs.96,29,238/- on BOE dating from 26.12.14 to 31.01.15 out of which the defendant has paid Rs.94,75,564.13. But the same has not been shown by the plaintiff. A statement showing the details of claim and payment made in this regard is herewith produced as document No.1.
7. I state that the plaintiff has claimed a sum of Rs.64,16,828/- on BOE dating from 06.02.2015 to 26.02.2015 out of which the defendant has paid Rs.17,01,971.87 But the same has not been shown by the plaintiff. A statement showing the details of claim and payment made in this regard is herewith produced as document No.2.
8. I state that the plaintiff has claimed a sum of Rs.1,29,73,027/- on BOE dating from 27.03.2015 to 27.04.2015 out of which the defendant has paid Rs.12,855/-. But the same has not been shown by the plaintiff. A statement showing the details of claim and payment made in this regard is herewith produced as document No.3.23
9. I state that the plaintiff has claimed a sum of Rs.1,04,43,437/- on BOE dating from 28.04.2015 to 27.05.2015 out of which the defendant has paid Rs.1,86,480/- But the same has not been shown by the plaintiff. A statement showing the details of claim and payment made in this regard is herewith produced as document No.4.
10. Thus, a total of Rs.01,13,76,871/- (Rupees one crore thirteen lakhs seventy six thousand eight hundred and seventy one only) has been paid by the defendant and the plaintiff has not stated the said facts before this Hon'ble Court. The Bank statements evidencing the payments are herewith produced as document No.5. The amounts claimed by the plaintiff and the payments made by defendant are shown in a tabular form as below.
Sl.No. Period Amt. claimed by plaintiff Amt. paid by Defendant 01 26/12/14 to Rs.96,29,283.00 Rs.94,75,564.13 31/1/15 02 6/2/2015 to Rs.64,16,828.00 Rs.17,01,971.87 26/2/15 03 27/02/15 to Rs.81,31,377.00 Rs.00- 26/3/2015 04 27/3/2015 to Rs.1,29,73,027.00 Rs.12,855.00 27/4/15 05 28/4/2015 to Rs.1,04,43,437.00 Rs.1,86,480.00 27/5/2015 TOTAL Rs.4,75,93,952894.00 Rs.1,13,76,871.00 24
23. Sub-rule 5 of Rule of Order 37 of CPC would be relevant which reads as follows:
"(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious.
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so 25 admitted to be due is deposited by the defendant in Court."
24. A careful reading of the above provision would reveal that, the defendant within ten days from service of summons for judgment could apply with facts and disclosing defence, leave to defend such suit and such leave to defend may be granted unconditionally or upon such terms as the Court deems just. First proviso to the sub-rule states that leave to defend shall not be refused, unless such defense is frivolous or vexatious. Second proviso to the sub-rule states that where a part of the claim is admitted by defendant to be due, leave to defend the suit shall not be granted unless the amount so admitted is deposited in the Court.
25. Under Order 37, it is exercise of discretion by the Court in a given facts and circumstances of the case. Exercise of discretion shall be judicious exercise of discretion. 26
26. On perusal of the affidavit of the defendant extracted above, the defendant has admitted the transaction between the plaintiff and defendant. Paragraph 6 of the affidavit further makes it clear that the defendant, out of claim of Rs.96,29,238/- on BOE between 26.12.2014 to 31.01.2015 paid a sum of Rs.94,75,564/-. Similarly, in paragraphs 7, 8 and 9 of the affidavit, the defendant has admitted the BOE and has stated that out of the amount claimed by the plaintiff, certain amount has been paid. Taking note of the above facts, the trial Court has rightly exercised its discretion and granted leave to defend with a condition to deposit Rs.3,00,00,000/- before the Court. Once the Court on examination of the facts arrives at a conclusion that the defendants admitted the transaction and admitted the transaction and admitted the claim, the Court has no option but to grant leave, subject to deposit of admitted amount as required under sub-rule (5) of Rule 37 of CPC. The exercise of 27 discretion under the above said rule is neither erroneous nor irregular or could not be termed as jurisdictional error.
27. The Hon'ble Apex Court in a case reported in (2008) 14 SCC 457 in the case of SOUTHERN SALES AND SERVICES AND OTHERS v/s SAUERMILCH DESIGN AND HANDELS GMBH while dealing with grant of leave to defend under Order 37 rule 3(5) of CPC, laid down principles with regard to interference by the higher Courts. Paragraphs 15 to 19 reads as follows:
"15. Having considered the submissions made on behalf of the respective parties and the decisions cited, there appears to be force in Mr.Sharma's submissions regarding the object intended to be achieved by the introduction of sub-rules (4),(5) and (6) in Rule 3, Order 37 of Code. Whereas in the unamended provisions of Rule 3, there was no compulsion for making any deposit as a condition precedent to grant of leave to defend a suit by virtue of the second proviso to sub-rule (5), the said provision was altered to the 28 extent that the deposit of any admitted amount is now a condition precedent for grant of leave to defend a suit filed under Order 37 of the Code. A distinction has been made in respect of any part of the claim, which is admitted. The second proviso to sub-rule (5) of Rule 3 makes it very clear that leave to defend a suit shall not be granted unless the amount as admitted to be due by the defendant is deposited in court.
16. ..............................................
17. As has been pointed out by Mr.Sharma, it is now well established as a principle of law that even if a wrong order is passed by a court having jurisdiction to pass an order in such cases, the revisional court will not interfere with such an order unless a jurisdictional error is pointed out and established by the person who questions such order.
18. In the instant case, the High Court did not lack jurisdiction to pass an order with regard to the subject matter of dispute, though the order itself may be incorrect. There is, therefore, little 29 scope for this Court to interfere with the directions given to the appellant herein to deposit in court 55% of the admitted dues as a precondition to grant of leave to defend a suit.
19. The judgment of the High Court impugned in this appeal does not warrant any interference since the trial Court had exercised its jurisdiction under the second proviso to sub-rule (5) of Rule 3, Order 37 of the Code. The earlier concept of granting unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to deposit any amount as admitted before leave to defend the suit can be granted.
The question as to whether leave to defend a suit can be granted or not is within the discretionary powers of the High Court and it does not appear to us that such discretion has been exercised erroneously or with any irregularity which warrants interference by this Court."
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28. In the case on hand also, the trial Court taking note of the facts, particularly affidavit dated 02.07.2018 exercised its judicial discretion which in the facts and circumstances would not warrant interference under Article 227 of the Constitution of India. The supervisory jurisdiction of this court under Article 227 of the Constitution of India is very limited and the High Court would not act as an appellate authority. The supervisory jurisdiction is confined only to see whether the trial Court passed orders within the parameters of its jurisdiction. The Hon'ble Apex Court in the case of LAXMIKANT REVCHAND BHOJWANI AND ANOTHER V/S PRATAP SINGH MAHANSINGH PARDESHI BY LRs reported in (1995) 6 SCC 576 has held that the High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice.
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29. For the reasons stated above, the writ petition stands rejected. However, taking note of the present day situation i.e., COVID-19, the petitioner/defendant is granted eight weeks time from today to deposit the amount as ordered by the trial Court.
The observations made during the course of this order or observations made by the trial Court shall not influence further proceedings in the suit.
Sd/-
JUDGE mpk/-* CT:bms