9911796707
TMI Blog2014 (8) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... nd with the consent of learned counsel for the respective parties, the petition is being heard and decided, finally. 2. The challenge in this petition under Articles 226 and 227 of the Constitution of India is to the order dated 27.07.2012, passed by the learned Chamber Judge, Court No. 6, City Civil Court, Ahmedabad ( the City Civil Court ), below the application at Ex. 22, in Summary Suit No. 554 of 2011, whereby unconditional leave to defend has been granted to the respondent (original defendant). 3. The petitioner is the original plaintiff, having filed Summary Suit No. 554 of 2011 in the City Civil Court against the respondent, for recovery of dues amounting to Rs. 68,65,618/-, along with interest amounting to Rs. 7,07,904/-, that is, for a total amount of Rs. 75,73,512/-. The respondent filed an affidavit for leave to defend, raising a dispute as to the quality of goods supplied to the respondent and also challenging the interest on delayed payments. By the impugned order, the City Civil Court granted unconditional leave to defend, to the respondent. Aggrieved thereby, the petitioner is before this Court. 4. Ms. Manisha Lavkumar, learned advocate for the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st takes it out from the ambit of summary proceedings. In support of this submission, reliance has been placed upon a judgment of this Court in Zonal Manager v. Akhilbhai B. Mehta-2002(2) GCD (UJ) (Guj.). 8. It is further submitted that from no angle can the letter dated 25.11.2010, written by the respondent to the petitioner, asking the petitioner for a statement of accounts, be construed as an admission of any liability. The cheques issued by the respondent were given to the petitioner as a security, as is the usual trade practice. The petitioner was specifically asked by the respondent, by way of this letter, not to include them in the statement of accounts. However, those cheques have been added in the statement of accounts by the petitioner, along with the interest. 9. That, no amount is mentioned in the letter dated 25.11.2010, therefore, it cannot be stated that the respondent is admitting any liability for any amount. In fact, the respondent has asked the petitioner to prepare proper accounts as the accounts prepared by the petitioner show an inflated figure, by including the cheques given as security by the respondent. The respondent does not admit the accounts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Order 37 of the Code. According to the learned advocate for the respondent, this judgment is not applicable to the facts of the present case. 16. It is further submitted that the defence regarding inferior quality of the goods can only be raised at the time of filing the affidavit for leave to defend. Whether the defence is ultimately accepted by the Trial Court, or not, is to be seen during the Trial. The Court would frame an issue to this effect. At this stage, the Court has rightly not opined on this issue as the suit is still at large. 17. Lastly, it is submitted that the City Civil Court has committed no jurisdictional error in granting unconditional leave to defend. The Court has the power and the discretion to pass the impugned order, and such power and discretion have been exercised judiciously. If the petitioner is aggrieved, the suit can be expedited. However, the impugned order, as it stands, does not call for interference under the supervisory jurisdiction of this Court. 18. In rejoinder, learned advocate for the petitioner has mostly reiterated the submissions advanced earlier. 19. This Court has heard learned counsel for the respective parties, perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the matter, since the suit filed by the plaintiff is not falling within ambit of Summary Suit the order passed by the learned trial Judge to defend the suit on condition is without jurisdiction and erroneous and is required to be set aside. In this view of the matter, this Revision Application is allowed. The order impugned passed by the City Civil Court for issuing summons for judgment which is dated 17.12.1991 is set aside and consequently the order impugned which is dated 12.1.2000 granting conditional leave to defend is also set aside. Rule is made absolute. No order as to costs. 22. The principles of law enunciated in the above-quoted judgment would squarely apply to the facts of the present case. Learned advocate for the petitioner has not chosen to distinguish this judgment or to make any submissions regarding the aspect regarding charging of interest. There is no denying the fact that not only has the petitioner claimed interest in the suit but the statement of account prepared by the petitioner, a copy of which is annexed to the petition, also clearly shows that interest claimed for late payment of interest has been debited to the account of the respondent and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 26. Learned advocate for the petitioner has laid great emphasis upon the letter dated 25.11.2010, written by the respondent to the petitioner. This letter merely records the request of the respondent to send the statement of account in detail so as to enable it to make payments on schedule. This cannot be construed as an admission of liability. There is a note at the bottom of the letter which specifically requests the petitioner not to include the cheques of the respondent that have not been cleared in the statement of account. No amount is mentioned in the contents of the said letter. The context of the note is with regard to non-inclusion of the cheques in the statement of accounts. This cannot be considered to be an admission of liability that any amount is outstanding from the respondent to the petitioner, as has rightly been held by the City Civil Court. 27. The judgments cited on behalf of the petitioner may now be considered. 28. The judgment of High Court of Delhi in M/s. Shyam Dri Power Ltd. v. Bhav Shakti Steel Mines Private Limited in Company Petition No. 475 of 2009, has been rendered in a Company Petition for winding-up under Sections 433 read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
