SCA/8002/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8002 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= M/S RATAN ENTERPRISES - Petitioner(s) Versus M/S RADHA KRISHNA SHIPPING PVT LTD - Respondent(s) ========================================================= Appearance : MR CL SONI for Petitioner. MS MEGHA JANI for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/07/2008 ORAL JUDGMENT 1. Rule. Ms.Megha Jani, learned advocate waives service of Rule on behalf of respondent-original defendant. With the consent of learned advocates appearing for the respective parties, the petition is SCA/8002/2008 2/6 JUDGMENT taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner-original plaintiff has prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 7.1.2008 passed by the learned Additional Senior Civil Judge, Gandhidham granting unconditional leave to defend the suit below application Exh.12 in Special Civil Suit No.32 of 2007. 3. Shri C.L.Soni, learned advocate appearing on behalf of the petitioner-original plaintiff has submitted that the only dispute and the defence of the respondent was with respect to interest only. The learned trial court ought not to have granted unconditional leave to defend the suit to the respondent more particularly when the principal amount was not disputed. He has drawn the attention of the Court to certain observations made by the trial court to the effect that the defendant has raised the dispute of interest only and even the learned advocate appearing on behalf of the defendant SCA/8002/2008 3/6 JUDGMENT also argued that as there is a dispute of interest the same is a triable issue. 4. On the other hand, Ms.Megha Jani, learned advocate appearing on behalf of the respondent- original defendant has submitted that the only defence of the defendant before the trial court with respect to interest only. It is submitted that number of submissions were made and dispute with respect to contract itself was not challenged. However, it might be that the learned advocate appearing on behalf of the defendant might have put weight only on the ground pertaining to interest. It is submitted that number of defences have been raised which are reflected in para 5 of the impugned order. 5. Heard the learned advocates appearing for the respective parties. 6. It is true that number of defences have been raised on behalf of the defendant in support of the prayer to defend the suit unconditionally which are so reflected in para 5 of the impugned order. SCA/8002/2008 4/6 JUDGMENT However, considering para 6 of the impugned order, it appears that at the time of arguments the learned advocate appearing on behalf of the defendant has put weight only on one ground pertaining to interest. It appears that the learned trial court has not considered any other submissions and/or defences which are mentioned in para 5 of the impugned order. In view of the above, there is a broad consensus between the learned advocates appearing for the respective parties that in that case the impugned order be set aside and the matter be remanded to the trial court for deciding the leave to defend application afresh on considering all defences which are mentioned in para 5 of the impugned order and defence of the defendant may not be restricted to interest only. 7. In view of the above and considering the impugned order passed by the trial court granting unconditional leave to defend the suit to the respondent-defendant, it appears that the learned trial court has considered only dispute with respect to interest and no other defences have been considered. Under the circumstances, without further SCA/8002/2008 5/6 JUDGMENT entering into the merits of the case and expressing anything on merits, let the impugned order passed by the trial court be quashed and set aside and the matter be remanded to the trial court for deciding leave to defendant application afresh without in any way being influenced by the earlier order. 8. For the reasons stated above, the petition succeeds in part. The impugned order dated 7.1.2008 passed by the learned Additional Senior Civil Judge, Gandhidham granting unconditional leave to defend the suit below application Exh.12 in Special Civil Suit No.32 of 2007 is quashed and set aside and the matter is remanded to the trial court for deciding the suit afresh in accordance with law and on merits, and on considering all the defences and after considering the submissions made on behalf of the respective parties. The said exercise will be completed within a period of three months from the date of receipt of this order or on production of the certified copy of this order. 9. Rule is made absolute accordingly. There shall be no order as to costs. SCA/8002/2008 6/6 JUDGMENT ( M.R. SHAH, J.) syed/