SCA/15886/2003 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15886 of 2003 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 ========================================================= VIKRAMBHAI RASIKLAL SHAH - Petitioner(s) Versus LALBHAI INDUSTRIES LIMITED & 4 - Respondent(s) ========================================================= Appearance : MR SHALIN N MEHTA for Petitioner(s) : 1, MR SANJAY M AMIN for Respondent(s) : 1, DELETED for Respondent(s) : 2, 5, DS AFF.NOT FILED (R) for Respondent(s) : 3, RULE SERVED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/04/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the SCA/15886/2003 2/9 JUDGMENT Constitution of India, the petitioner-original defendant No.2 has prayed for an appropriate writ, order or direction quashing and setting aside the order below Summons for Judgment Exh.12 passed by the learned Judge, City Civil Court, Ahmedabad in Summary Suit No.2683 of 2002 whereby the petitioner is granted leave to defend on the condition of depositing Rs.15.00 lacs in the Court. 2. Respondent No.1 herein-original plaintiff has filed a Summary Suit No.2683/2002 in the City Civil Court at Ahmedabad for a decree of Rs.60,29,288.13/- against all the defendants inclusive of petitioner – original defendant No.2 based upon the writing/mortgage deed by the original defendants No.2 and 5 on 1.6.2001 and the guarantee given by original defendants No.2, 3 and 4 of Rs.70.00 lacs for the amount alleged to have been due and payable by the original defendant No.1. The respondent No.1 herein-original plaintiff prayed for summons for judgment at Exh.12 and prayed for a decree for the aforesaid amount. 2.1 It is required to be noted that in the suit the plaintiff has prayed for a decree against all the defendants for the amount of Rs.60,29,288.13/- and also for a decree against SCA/15886/2003 3/9 JUDGMENT the mortgage property. The application was opposed by the petitioner – original defendant No.2 by submitting application below Exh.15 and 16 and prayed for leave to defend. The learned Judge of the trial court, relying upon the decision of the Hon'ble Supreme Court in the case of M/s.Mechalec Engineers & Manufacturers vs. M/s.Basic Equipment Corporation reported in AIR 1977 SC 577 more particularly para 8(c) of the said judgment, passed the impugned order granting conditional leave to defend to the original defendant No.2 on the condition of depositing Rs.15.00 lacs in the court. 2.2 Being aggrieved and dissatisfied with the said order, the petitioner-original defendant No.2 has preferred the present petition. 2.3 Shri Shalin Mehta, learned advocate appearing on behalf of the petitioner-original defendant No.2 has submitted that there are triable issues like the present summary suit cannot be said to be a summary suit and it can be said to be a suit for recovering the possession of mortgage property, and that considering the Order 37 Rule 2(b) of the Code of Civil Procedure, the summary suit itself is not maintainable. It is also submitted that there are other triable issues and SCA/15886/2003 4/9 JUDGMENT therefore the trial court has committed an error in granting conditional leave to the petitioner on condition of depositing Rs.15.00 lacs in the Court. It is also submitted that even the observations of the Hon'ble Supreme Court in the aforesaid decision is misread and not properly applied and therefore it is requested to allow the present Special Civil application. 3. Shri Sanjay Amin, learned advocate appearing on behalf of the respondents-original plaintiffs while opposing the present Special Civil Application has submitted that there are no merits in any of the defences raised by the petitioner- original defendant No.2 more particularly when the property was mortgaged by the defendant No.2 and that even the subsequent conduct of the petitioner-original defendant No.2 is also required to be considered in such a case. It is also submitted that even after filing of the suit there is a memorandum of understanding entered into between the parties. Therefore, it is submitted that, in the facts and circumstances of the case, when the trial court has granted leave to defend and condition to deposit Rs.15.00 lacs by the petitioner – original defendant No.2, it cannot be said that there is illegality committed by the trial court and/or the order passed by the trial court is arbitrary and/or perverse. By SCA/15886/2003 5/9 JUDGMENT making the above submissions, it is requested to dismiss the present Special Civil Application. 4. Heard the learned advocates appearing for the respective parties. 5. While considering the question with respect to leave to defend in a summary suit, what is required to be considered is whether any triable issues are there or not. It is the contention on behalf of the petitioner-original defendant No.2 that looking to the prayer and the relief prayed in the suit and considering Order 37 Rule 2(1)(b) of the CPC, such a summary suit itself is not maintainable. Order 37 Rule 2 (1) reads as under: “2. Institution of summary suits :- (1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,- (a) a specific averment to the effect that the suit is filed under this Order. (b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the tile of the suit, namely:- “(Under Order XXXVII of the Code of Civil Procedure, 1909)”. SCA/15886/2003 6/9 JUDGMENT 5.1 Considering Order 37 of the CPC, a plain summary suit is triable upon bill of exchange, hundies and promissory notes etc. 6. As stated above, in the prayer clause the respondent No.1-original plaintiff has not only prayed for a decree for an amount of Rs.60,29,288.13/- against all the defendants but has also prayed for a decree to recover the said amount against the mortgaged property. It is also required to be noted that considering the averments in the plaint, it is the case on behalf of the respondent No.1-original plaintiff that the defendants No.2 to 4 have given the personal guarantee of Rs.70.00 lacs for and on behalf of the original defendant No.1. Still so far as summary suit is concerned and decree of the aforesaid amount is concerned, the prayer is against all the defendants. 7. It is also averred in the plaint that, so far as mortgaged property is concerned, the property is mortgaged by the original defendants No.2 and 5 and still the decree is passed to recover the aforesaid amount against all the defendants. Considering the Order 37 Rule 2, a suit to which Order 37 applies may if the plaintiff desires to proceed, be instituted by SCA/15886/2003 7/9 JUDGMENT presenting the plaint which shall contain that no relief which does not fall within the ambit of the said rule has been claimed in the plaint. Under the circumstances and considering the relief and the prayer sought in the suit and considering the Order 37 Rule 2 (1)(b) that is a triable issue whether such a summary suit with the aforesaid relief is maintainable or not. 8. As this Court is of the opinion that the maintainability of suit itself is a triable issue and the trial court ought to have granted unconditional leave to defend, this Court is not further considering the other triable issues and/or discussing the same. 9. Even the trial court has misread the decision of the Hon'ble Supreme Court in M/s.Mechalec Engineers & Manufacturers (supra). In para 8(c) the Hon'ble Supreme Court has observed that 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 has 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 SCA/15886/2003 8/9 JUDGMENT 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 not as to payment into Court or furnishing security. In spite of the above observations of the Hon'ble Supreme Court, the trial court has held that, in spite of making out a case for defence, the trial court has still a discretion to impose conditions with respect to payment into Court or furnishing security, which considering the para 8(c) of the aforesaid judgment, the same is negatived specifically by the Hon'ble Supreme Court. 10. Under the circumstances and without further making any observations on merits, as the suit is still pending, any observations made by this Court may likely to affect the parties to the suit, considering the Order 37 Rule 2(1)(b) of the CPC and considering the fact that there is a triable issue with regard to maintainability of the suit, the trial court has committed an error in imposing condition of depositing Rs.15.00 lacs while granting conditional leave to defend. 11. Under the circumstances and for the reasons stated SCA/15886/2003 9/9 JUDGMENT above, the petition succeeds. The impugned order passed by the learned Judge of the City Civil Court, Ahmedabad passed below Exh.12 in Summary Suit No.2683 of 2002 whereby the petitioner is granted to leave to defend on condition of depositing Rs.15.00 lacs in the Court is hereby quashed and set aside and the defendant No.2 is granted unconditional leave to defend the suit. In the facts and circumstances of the case and with the consent of learned advocates appearing for the respective parties, the trial court is directed to decide and dispose of the suit within a period of one year from the date of receipt of the writ of this Court. The trial court is directed to decide and dispose of the same without in any way being influenced by the present order and the same shall be decided by the trial court in accordance with law and on its own merits. Rule is made absolute accordingly. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/