1 wp 7469-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7469 OF 2010 Mohini Wineries Ltd. ..Petitioner vs. M/s.S.S.R. Wind Engineers & Ors. ..Respondents Mr.Niranjan Mogre i/b. Mr.S.M. Gorwadkar for the Petitioner. Mr.S.S. Shah for the Respondents. CORAM : B.R. GAVAI, J DATED : FEBRUARY 9, 2011. P.C. : 1 By way of present petition, the petitioner challenges three Orders, 1) Order dated 12th April, 2010, below Exhibit-53 thereby rejecting the application filed by the present petitioner for rejection of the plaint, 2) Order below Exhibit-18 dated 7th July, 2010 to the extent which imposes condition of deposit of 50% amount for granting leave to defend, and 3) Order dated 7th June, 2010 below Exhibit-74 rejecting the 2 wp 7469-2010.sxw application filed by the petitioner for direction to the respondent-plaintiff to produce the balance sheets for last two years. 2 Insofar as the challenge to the Order below Exhibit-53 is concerned, the learned Counsel for the petitioner withdraws the petition with liberty to take appropriate steps in accordance with law. The said petition to that extent, therefore, stands disposed of as withdrawn with liberty as prayed for. 3 Insofar as Order below Exhibit-18 is concerned, the learned Counsel for the petitioner states that the learned trial court has grossly erred in imposing a condition of 50% of the deposit for granting leave to defend. The learned Counsel submits that the petitioner has made out a case which is triable. He submits that as a matter of fact, the plaintiff has already been paid more than one to which he is due and his claim is based 3 wp 7469-2010.sxw on excessive amounts in the invoices. It is, therefore, submitted that leave ought to have been granted unconditionally. 5 The learned Counsel for the petitioner further submits that insofar as the observation by the learned trial court regarding the balance sheet is concerned, the same is totally erroneous inasmuch as the petitioner can very well lead evidence at the stage of trial regarding incorrectness of the same. 6 Shri Shah, learned Counsel for the respondent, on the contrary submits that taking into consideration the facts and circumstances, the learned trial court has granted leave. He submits that the discretion which is exercised by the learned trial court has been exercised in the right manner and therefore, it warrants no interference. He also placed reliance on he judgment of the Apex Court in the case of Sify 4 wp 7469-2010.sxw Ltd. vs. First Flight Couriers Ltd., reported in 2008(4) Mh.L.J. 620. 7 It can be seen from the order impugned that the learned trial court while granting leave to defend has imposed a condition which directs petitioner to deposit 50% amount. While passing the said order, the learned trial court has taken into consideration the balance sheets of the defendant company which are audited by the chartered accountant. It is the contention of the plaintiff that the plaintiff is entitled to the amount claimed in the plaint. Insofar as the defence raised by the petitioner regarding excessive billing is concerned, the same is for the first time taken vide communication dated 10th July, 2007 which is after the institution of the suit by the respondent-plaintiff. Reliance placed by the respondent on the judgment of the Apex Court in the case Sify Ltd. vs. First Flight Couriers Ltd. (supra) is well-placed. From the 5 wp 7469-2010.sxw perusal of the order, it would, thus, reveal that while deciding application below Exhibit-18, the learned trial court has exercised the discretion after taking into consideration cogent and relevant material and it, therefore, cannot be said that the discretion so exercised has been exercised in a perverse manner so as to warrant interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India. 8 Insofar as the contention of the learned Counsel for the petitioner regarding the observation by the learned trial court on the basis of balance sheet is concerned, the learned trial court has prima facie found that the balance sheets were duly audited by the chartered accountant and on the basis of the said audited balance sheets, it has prima facie come to the conclusion that the case of the plaintiff was fortified. No doubt that the petitioner-defendant would be at liberty to lead the evidence at the 6 wp 7469-2010.sxw stage of trial provided it complies with the condition as imposed by the learned trial court while granting leave to defend. In that view of the matter, I am unable to accept the submission in that regard. 9 Insofar as challenge to the order on the application below Exhibit-74 is concerned, the said application is rejected only on the ground that it is premature. In that view of the matter, no interference is warranted insofar as that order is concerned. 10 Petition is, therefore, rejected. (B.R. GAVAI, J)