Alpa Marketing Enterprises vs Jaihind Distributors Prop. and Another

H.B. Antani, J.—This Revision Application u/s 115 of the CPC is directed against the order dated 17.10.2000 passed by Judge, Court No. 16, City Civil Court, Ahmedabad below Summons for Judgment in Summary Civil Suit No. 5688 of 1998 whereby the learned Judge gave unconditional leave to defend the suit.

Mr. Gandhi, learned advocate for the petitioner at the outset submitted that in view of the amendment to Section 115 of the Civil Procedure Code, he may be permitted to convert this Revision into a Special Civil Application. He has submitted that in similar circumstances, this Court permitted conversion of Revision Applications into Special Civil Application which have also been finally disposed of by this Court. In support of this contention, he has relied on judgment dated 07.02.2007 passed in SCA No. 23320 of 2005, order dated 13.03.2008 passed in SCA No. 19750 of 2007 and order dated 12.12.2008 passed in SCA No. 18677 of 2007. Mr. Gandhi also relied on the judgment of the Apex Court in the case of Col. Anil Kak (Retd.) Vs. Municipal Corporation, Indore and Others, and two judgments of this Court in the case of Chandravadan Manubhai v. Nalini Navin Bhagwati reported in 1996 (1) GLH 36 and in the case of Suvidha Builders v. Dilipsinh Pravinsinh reported in 2004 (O) GL HEL HC 212856.

On merits Mr. Gandhi submitted that the order passed by the learned Judge is erroneous, illegal and contrary to the facts and law, and, therefore, requires to be quashed and set aside. He submitted that the order was passed after 10 months and therefore it is practically impossible to remember the true and corrects and therefore, the order is not a legal order. Learned advocate submitted that Summary Suit No. 5688 of 1998 was filed to recover a sum of Rs. 1,47,541-39 on the ground that for the period from 04.02.1997 to 02.09.1997, goods worth Rs. 4,96,736-50 were sold and after deducting all expenses and commissions and after adjusting the amounts received as well as giving effect to the debit notes etc., an amount of Rs. 1,36,760-16 remained due and payable. Since the amount was outstanding, a notice was sent to the respondent but the same returned with an endorsement ''firm closed''. Therefore, for the outstanding amount with interest at the rate of 24%p.a., the suit was filed for recovery of Rs. 1,47,541-39. He submitted that the matter was heard in December 1999 and the learned Judge passed the order on 17.10.2000 - after about 10 months. He submitted that the learned Judge has granted unconditional leave on the ground that there are number of entires about penal interest and therefore, the issue about penal interest is required to be determined at the trial. He further submitted that the learned Judge also observed that there is no explanation forthcoming as to from where the opening balance is carried forward and therefore, there is a possibility that the suit claim is barred by limitation, which requires to be proved by the plaintiff at the time of taking evidence. He submitted that that the defendants have not raised any defence in the leave to defend that penal interest is charged and from the accounts produced since 1997, it is clear that no amount is charged as interest, interest is neither debited in the account nor is it in dispute between the parties. He, therefore, submitted that there is non-application of mind, and the learned Judge erred in granting conditional leave and the said order deserves to be quashed and set aside and conditional order be passed to defend the suit.

On the other hand, Mr. J.T. Trivedi, learned advocate representing the respondents submitted that Civil Revision Application is not maintainable more particularly in view of the amendment in Section 115 of CPC, as the order challenged is interlocutory in nature. He submitted that the learned Judge has considered the compilation of documents produced by both the sides as well as the documents on which reliance was placed. He further submitted that considering the entirety of the situation, the learned Judge has used discretionary powers under Order 37 of the CPC, and held that since the issues are triable and bonafide defence is raised, unconditional leave to defend the suit is required to be granted to the respondents. Learned advocate submitted that there is no infirmity in the order passed by the learned Judge which would call for interference by this Court while exercising powers u/s 115 of the CPC. Mr. Trivedi, learned advocate also placed reliance on the following judgments:

Santosh Kumar Vs. Bhai Mool Singh,

Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation,

Relying on the aforesaid judgment in the case of Mechalev [supra], learned advocate Mr. Trivedi submitted that whenever a defence raised a really triable issue, and if the defences are honest and bonafide, unconditional leave must be given to defend the suit. In paragraph 8 of the judgment, the Apex Court held as under:

In Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee (1945) 49 Cal WN 246 at pg. 253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C in the form of the following propositions (at p. 253).

(a). If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b). If the defendant raises a triable issue indicating that he has a fair or bonafide or unreasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c). If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff''s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but as to payment into Court or furnishing security.

(d). If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e). If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.

In the judgment in the case of Santosh Kumar [supra], the Apex Court held that wherever the defence raises a "triable issue", unconditional leave must be given.

Learned advocate Mr. Trivedi submitted that considering the ratio laid down in the above mentioned judgments, there is no infirmity in the impugned order passed by the learned trial Judge and the petitioner has not made out any case for interference of this Court u/s 115 of the CPC, and, therefore, the Revision Application deserves to be rejected.

Heard learned advocate Mr. Chinmay Gandhi for the petitioner and Mr. J.T. Trivedi for the respondents.

As regards the prayer for permission to convert this Revision into Special Civil Application, this Court is not inclined to accept the said request. The suit is of the year 1998 - about 12 years old. This Revision which is filed in the year 2001 has come up for final hearing after about 9 years. If such permission as sought for is granted, the Special Civil Application may take few more years to come up for final hearing, even if it is entertained. Considering the delay already caused in the matter and the delay that would further cause if such permission is granted, this Court is not inclined to accede to the said request at this belated stage, but on the contrary, would like to dispose of this Revision on merits. Though the impugned order is interlocutory and does not finally decide the lis between the parties, this Court is not dismissing this Revision as not maintainable in view of the amendment, but it is being disposed of on merits in order to prevent further delay. Hence the judgments relied upon by learned advocate Mr. Gandhi is not discussed here in detail.

I have also perused the averments made in the application as well as the impugned order passed by the learned Chamber Judge. The learned Judge has, after considering the documents produced before the Court held that there are certain issues which are required to be determined by the Court at the time of trial and since the defence which was raised by the defendant was bonafide and triable issues, the Court granted unconditional leave to defend the suit. The Court, while granting unconditional leave, has exercised discretionary powers vested in it under Order 37 Rules 3 and 5. I have also perused the compilation produced by the learned advocate on behalf of the petitioner. The affidavit in support of the leave to defend which was filed by the defendant is also perused by me. For the year 1996-97, an amount of Rs. 49,189-10 is shown as outstanding. There is no explanation whatsoever as to wherefrom the amount has been carried forward and what was the basis for doing so. There is no explanation whatsoever in the plaint for that as also in the affidavit in support of summons for judgment. The only explanation sought to be given is that the dealings between the parties were since several years, and from year to year balance is carried forward as the accounts are running accounts. This Court is also not impressed by the submission that it is for the defendant to produce the account at the stage of summons for judgment to dispute the outstanding amount of Rs. 49,189-10 at the end of financial year 1996-97. The said issue is a triable issue. The Court below, while considering the documents, affidavit as well as rejoinder affidavit, granted conditional leave to defend the case to the respondent while exercising discretionary powers under Order 37 Rule 3(2) of CPC.

In view of the aforesaid facts and circumstances of the case, there is no infirmity in the order passed by the learned Chamber Judge in granting unconditional leave to defend the suit.

For the foregoing reasons, there is no merit in the Revision, and therefore, the same is liable to fail. The Revision is accordingly dismissed. No order as to costs. The trial Court is directed to dispose of the suit as early as possible, preferably within six months from the date of receipt of the writ of this order.

Rule is discharged.