Gujarat High Court
C M Smith And Sons Ltd vs R K Casting Co on 29 January, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, K.J.Thaker
C/FA/1730/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1730 of 2015
With
CIVIL APPLICATION NO. 9634 of 2015
In
FIRST APPEAL NO. 1730 of 2015
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C M SMITH AND SONS LTD.....Appellant
Versus
R K CASTING CO.,....Defendant
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Appearance:
MR.ADITYA J PANDYA, ADVOCATE for the Appellant
MR HARESH H PATEL, CAVEATOR for the Defendant
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 29/01/2016
COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) ORDER IN FIRST APPEAL :
Heard learned counsels for the parties. The appeal deserves to be admitted as the counsel for the appellant has raised questions qua the limitation and the amount in question not being paid and not agreed between the parties and interest accumulated thereon is concerned. Hence, Admit.
ORDER IN CIVIL APPLICATION :Page 1 of 4
HC-NIC Page 1 of 4 Created On Sat Jan 30 01:43:57 IST 2016 C/FA/1730/2015 ORDER
1. The Court has heard learned counsels for the parties and perused the papers. The counsel for the applicant has contended that the entire suit was based upon the ledger account as the invoices and purchases orders were only 4 to 5 produced. This being not in consonance with the provisions of the Indian Evidence Act, especially Sections 65B and 34, the Appeal in fact, deserves to be not only admitted but allowed.
2. The second contention was raised in respect of suit being time barred as the amount claimed was ranging from the period upto the period which according to him had rendered the entire claim being barred by law. The learned counsel for the applicant has relied upon the following decisions in support of said contention:
(i) Judgment reported in AIR 1977 SC 577 in case of M/s. Mechalec Engineers and Manufacturers Vs. M/s. Basic Equipment Corporation;
(ii)Judgment reported in AIR 2008 SC 1117 in case of Neebha Kapoor Vs. Jayantilal Khandwala and Ord;
(iii) Judgment reported in 2002 (2) GLH 673, in case of State Bank of Saurashtra Vs. M/s Ashit Shipping Services (P) Ltd & Anr;
3. Learned counsel appearing for the applicant further submitted that the so called admission which is said to be held-out against the defendant cannot be said to be an admission. On its close perusal, the E-mail is said to have been dated 28.5.2014, which was admittedly sent after the limitation was over and looking to Section 18 of the same, it could not have been said to have been so, as to Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Jan 30 01:43:57 IST 2016 C/FA/1730/2015 ORDER extend the limitation period.
4. Shri Nilesh Pandya, learned advocate appearing for the respondent contended that the leave to defend was filed beyond the period of its filing. The counsel for respondent has invited this Court's attention to leave to defend, more particularly page nos. 58 and 61 and indicated that in light of these averments, the admission is clearly emerging so far as the debt is concerned, coupled therewith, the contents of E-mail is required to be noted, in which, schedule for payment was mentioned, couple with request for bearing with the defendant, in view of market situation.
5. We are of the considered view that as the Appeal is admitted, the question of granting of interim relief is required to be addressed. Looking to averments made in leave to defend application and E- mail, the amount of Rs.43,40,061/-, can be said to be an admitted amount, which is required to be taken into consideration for considering the interim relief to be granted. Hence, the impugned judgment and order is stayed on a condition the applicant depositing the amount of Rs.43,40,061/- before the trial Court within 4 weeks from today and for the remaining amount, furnish appropriate security to the satisfaction of the trial Court, failing which, the stay shall automatically said to have been vacated.
6. In the result, the Civil Application is disposed of.
(S.R.BRAHMBHATT, J.) Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Jan 30 01:43:57 IST 2016 C/FA/1730/2015 ORDER (K.J.THAKER, J) pallav Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Jan 30 01:43:57 IST 2016