:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 7799 OF 2007 Ashokkumar Sureshkumar Mehta ...Petitioner Versus M/s.Lalitkumar Dilipkumar Kothari and Ors. ....Respondents ====== Mr.J.B.Kocheta, Adv. for the petitioners. Mr.N.R.Bubna, Adv. for respondent no.1. CORAM: S.C.DHARMADHIKARI, J. DATED: 18TH MARCH, 2008. P.C. P.C. P.C. : : : 1. Heard learned counsel appearing for the parties. 2. This Writ Petition is directed against an Order passed by the Trial Court on an Application for leave to defend in a summary suit. 3. The petitioner is the original Defendant no.2 to this Summary Suit. The Summary Suit proceeds on the basis that the goods were transported and supplied by :2: :2: :2: the Original Plaintiff as per the Invoice and orders placed either by defendant no.1 or by Defendant no.2 on behalf of Defendant no.1. The goods were transported/suppplied either to the Defendant no.1 or to the Defendant no.2 as per their directions. The liability from a plain reading of the plaint is accepted by Defendant no.1, prima-facie. the cheques have also been issued in discharge of this liability as is clear from para-4 of the plaint. 4. The cheques were dishonoured and some part payment was made by defendant no.1. 5. As far as Defendant no.2/petiioner before me is concerned, para-10 of the plaint reads thus :- "10. That the plaintiff states that, defendant no.2 is Guarantor and Middleman in respect of the transaction between the plaintiff and defendant no.1 and also used to place the order and remit the payments on behalf of defendant no.1 in respect of the goods supplied by the Defendant no.1. It is submitted that, Defendant no.2 used to place the order on behalf of Defendant no.1. Defendant no.2 was acting as Guarantor or middleman for plaintiff and used to place orders on behalf of several customers and therefore, he used to place the order in :3: :3: :3: respect of several customers in one letter. That practise was followed by the defendant no.2 in respect of several customers and plaintiff used to sent goods as per the orders placed by Defendant no.2 and as per the instructions of Defendant no.2, plaintiff used to supply the goods to the concerned parties as instructed by Defendant no.2. In the present suit also, the orders are placed by the Defendant no.2 on behalf of Defendant no.1 and plaintiff has supplied the goods to Defendant no. 1 on the instructions of Defendant no.2 only. There was an oral contract between Plaintiff and Defendant no.2, that Defendant no.2 will be the Guarantor of the transaction and as per the instruction, plaintiff will supply the goods to the concerned parties. Therefore, the Defendant No.2 was and is responsible for all the payment due and payable by defendant no.1 to the plaintiff on account of goods supplied by the plaintiff to Defendant no.1. An active participation and responsibility of the Defendant no.2 as Guarantor in the transaction between plaintiff and Defendant no.1 can easily ascertain from the voluminous documentary evidence, letters written by Defendant no.2 to the plaintiff. Copies of the letters are annexed herewith. 6. It is in such circumstances, that a joint and several Decree has been claimed against the defendants by the Original Plaintiff on the basis that the liability for making payment in respect of goods allegedly supplied is that of both. 7. Admittedly, in the plaint there is no :4: :4: :4: reference to any Negotiable Instrument and more particularly of the categories specified under Order 37 Rule 2(a). Mr.Bubna, appearing for the Original Plaintiff, would urge that the suit is based upon Order 37 Rule 2(b) and the claim must be construed accordingly. There is acknowledgement of liability and acknowledgements are referred to in para-15 of the plaint. 8. The Defendant no.2 while seeking leave has filed an elaborate Application and set out the version, Apart from the fact that he raised the issue of maintainability of the suit. The specific case of the defendant no.2 is beyond introducing the Original Plaintiff-Defendant no.1, he has absolutely no role to play in the transaction. The defendant no.2 at the most may have helped the Original Plaintiff in getting this order for supply or at some stage facilitating the payment. There is no written contract nor is there any guarantee. 9. It is in such circumstances, that I am of the opinion that the impugned order cannot be sustained. :5: :5: :5: The Learned Judge and most of the Learned Judges who have been presiding over civil courts outside Mumbai are unaware of the position in law that Order 37 of the Code of Civil Procedure, which carves out a summary procedure for trial of suit in certain categories would apply only if the suit falls in the Classes specified. It is not as if that any claim can be taken under summary procedure and tried accordingly. The original suits have to be tried in the manner provided by the Code of Civil Procedure and there are no shortcuts. In the present case and insofar as, the petitioner-Original Defendant no.2 is concerned the claim was clearly not maintainable under Order 37 of the Code of Civil Procedure. The Learned Judge has failed to apply his mind to the contents of the Application for leave to defend. He has not taken cognisance of the plaint averments or the pleas raised, at all. The reasoning in para-9 of he impugned order would go to show that the Learned Judge has treated the present petitioner as a Guarantor but at the same time he has termed him as Middleman. Certainly in law, there is a difference between a Guarantor, There is nothing like a Middleman and at the most he could be :6: :6: :6: termed as an Agent. Going by reasoning in para-9 itself, it is apparent that the petitioner is entitled to unconditional leave to defend. In the result, Writ Petition succeeds. The impugned order is quashed and set aside and the suit claim will now proceed as an Original suit and must be tried accordingly. All contents in that behalf are kept open and the observations must be read as restricted to the maintainability of the suit against the petitioner as the summary suit. 10. The belated attempt now is to show that the impugned order is justified on the ground that there are some letters which have been addressed by parties and on earlier occasion in identical Summary Suits, the order was passed granting conditional leave to defend and such an Order has been upheld, cannot be countenanced. As I have termed it, this is an desperate attempt to support the order. The order must speak for itself. Para-9 of the order clearly spells out the liability and the aspect of the suit being maintainable, as a Summary Suit. Further, neither of the letters have been allegedly termed as an :7: :7: :7: acknowledgement of liability, nor it has been termed as an Guarantee on behalf of Defendant no.2. If one terms the Defendant no.2 as a Guarantor, so also, Middleman, then the confusion is apparent. Therefore, merely because in some other suit such an order was passed and that is not interfered with, is no ground not to set aside the impugned order which is vitiated by an error apparent on the face of record and could be safely termed as perverse. Hence, this contention has also no merits. *******