SCA/23550/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23550 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JITENDRA J BHAVSAR - Petitioner(s) Versus RAMANBHAI S MARATHA - Respondent(s) ========================================================= Appearance : MR JIGAR M PATEL for Petitioner(s) : 1, MR RAHUL A TRIVEDI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 20/02/2008 ORAL JUDGMENT 1. The petitioner is the original plaintiff who had filed Summary Suit No.397 of 2005 before the City Civil Court, Ahmedabad. The petitioner claimed recovery of a sum of Rs.7,15,000/- from the defendant with 12% interest per annum from the date of filing SCA/23550/2007 2/7 JUDGMENT of the suit till the recovery. The respondent herein appeared in response to the summons issued and also prayed for permission to defend the suit as Long Cause Suit unconditionally. 2. Learned Judge of the City Civil Court, Ahmedabad by the impugned order dated 27.7.2007 below application Exh.35 for Summons for Judgment granted unconditional leave to defend the suit to the defendant – present respondent and further ordered that the suit be transferred in the list of Long Cause Suits. It is this order that has aggrieved the petitioner - original plaintiff. 3. The case of the petitioner in the Summary Suit is that the respondent had taken money from him totalling to Rs.7,15,000/- on different occasions including for his personal need. It is also the case of the petitioner that the respondent had executed Promissory Note for a sum of Rs.7,15,000/- on 29.6.2004. When the petitioner was in need of the money since marriage of his daughter was fixed on 8.12.2004, he demanded the same back from the defendant about a month before the marriage. Though the defendant promised that the same will be paid within 15 days time, promise was not kept. Thereafter, despite repeated demands, since the defendant did not pay the same, the petitioner was compelled to file the Summary Suit. 4. By replying to the suit and seeking leave to SCA/23550/2007 3/7 JUDGMENT defend, the defendant denied the allegations made in the suit. The plaintiff had also filed application Exh.5 and sought attachment of properties of the defendant before judgment. The defendant had filed reply to such application also in which it was denied that he had received Rs.7,15,000/- from the plaintiff. It was denied that he had executed Promissory Note in his favour for the said sum. The defendant further went on to state that in the past, the defendant had borrowed a small sum of money for a short period which he had promptly repaid. However, by misusing earlier Promissory Notes which were obtained from the defendant in blank, the suit is instituted on the basis of the Promissory Notes. This, in essence, was the defence of the defendant before the trial Court. 5. As noted, that the plaintiff had also filed application Exh.5 and sought attachment of immovable property of the defendant; which came to be granted by the City Civil Court. 6. After hearing the parties, learned Judge by his impugned order, granted the defendant his unconditional leave to defend. It was observed that the plaintiff has not stated as to on which date, how much amount was paid to the defendant. It was noted that the defendant has also disputed execution of the Promissory Note and issuance of cheque alleged to have been given by him during the pendency of the suit. Learned Judge further observed that since SCA/23550/2007 4/7 JUDGMENT alleged dues of the plaintiff have already been secured by way of injunction and since there are triable issues involved, the defendant is required to be granted unconditional leave to defend. 7. It may be noted that the defendant has taken substantially contradictory stand in his reply to the injunction application as well as in his reply to the Summons for Judgment. In his reply to the interim injunction application, he stated that the plaintiff has misused the blank Promissory Note taken from the defendant and filed the suit on the basis of such got up document. On the other hand, in his reply to the Summons for Judgment, he stated that the plaintiff has forged his signature on the Promissory Note and presented the same before the Court in this Summary Suit. 8. I find that the above stand of the defendant at two different places is self contradictory. On one hand, the defendant contended that he had signed the Promissory Notes earlier and the same was blank and was utilized by the plaintiff to enter the figure of his choice to file the Summary Suit. At another place, the defendant averred that Promissory Note in question does not contain his signature at all and that purported signature of the defendant on the Promissory Note produced by the plaintiff is forged. 9. Primarily, on this ground, I am inclined to believe that stand of the defendant is evasive and SCA/23550/2007 5/7 JUDGMENT nothing but misleading. One may also notice that as per the plaintiff, even during pendency of the suit, the defendant had issued cheque for the entire suit amount. Once again though the defendant denied having issued any such cheque, he not render any plausible explanation for the plaintiff being in possession of cheque purportedly signed by him. Be that as it may. On the very first ground of the defendant coming up with apparently contradictory and self defeating defence theories, I find that he cannot be granted unconditional leave to defend the suit. 10. Under the circumstances and considering the facts and circumstances of the case, I find that the defendant should be given leave to defend the suit on his depositing with the trial Court 50% of the suit amount. This may be done latest by 30.4.2008 to enable the defendant to defend the suit. 11. Learned advocate for the defendant submitted that immovable properties of the defendant are attached. This being so, interest of the plaintiff is sufficiently secured. No further relief is necessary. Reliance in this regard was placed on the decision of learned Single Judge of this Court in the case of Madhaviben Himansubhai Devani V/s Lataben Sureshbhai Pavagadi reported in 2000(4) GLR 3408. On the other hand, learned advocate for the petitioner submitted that even if interest of creditor is safe- guarded, that by itself would not be a ground to grant unconditional leave to defend. In this regard, SCA/23550/2007 6/7 JUDGMENT reliance was placed on the decision of the learned Single Judge in the case of Porbandar Commercial Co.Op.Bank Ltd., V/s Cham Exports and others, reported in AIR 2005 Gujarat 37. 12. Closer look at both the judgments would reveal that it is on the facts of the each case that Court has to decide whether unconditional or conditional leave is to be granted and in a given case, what condition should be imposed. However, when this Court is imposing condition of depositing as much as 50% of the suit amount to enable the defendant to defend the suit, any further attachment of the property would not be justified. 13. In view of the above discussion, therefore, subject to the above condition of depositing the amount, attachment of immovable properties of the defendant shall lift after he deposits such amount. To complete the formality, once he deposits such amount, it will be open for him to apply to the trial Court to pass order of lifting the attachment to which the petitioner would not object. It is, however, clarified that in any case, if the defendant fails to deposit the said amount, the order for attachment shall remain unaltered. 14. With these directions, the petition is disposed of. Rule is made absolute to the above extent. SCA/23550/2007 7/7 JUDGMENT ( AKIL KURESHI, J ) pathan