PATEL BALDEVBHAI RAMJIBHAI....Petitioner(s)V/SPATEL VISHNUBHAI HARGOVINDDAS....Respondent(s)
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPLICATION NO. 6527 of 2008
APPROVAL AND SIGNATURE:
Reporters of Local Papers may be allowed to see the judgment ?
be referred to the Reporter or not ?
their Lordships wish to see the fair copy of the judgment ?
this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
it is to be circulated to the civil judge ?
TUSHAR L SHETH, ADVOCATE for the Petitioner(s) No. 1
VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 1
SERVED BY DS for the Respondent(s) No. 1
Date : 25/06/2013
petition arises out of impugned order dated 08/02/2008 passed under Order 37 of the Code of Civil Procedure (for short the Code) granting conditional leave to the original defendant petitioner, on his depositing an amount of Rs.3.32 Lacs. In a Summary Suit valued at Rs.5.40 Lac summons for judgment was taken out vide Exh.8 seeking a decree in the sum of Rs.3.50 Lacs and also the interest of Rs.1.83 Lacs aggregating Rs.5.40 Lac. The reply was filed which was adopted as leave to defend affidavit vide Exh.10 in said Summary Suit No.445 of 2001 instituted in the Ahmedabad City Civil Court.
the impugned order came to be passed few other proceedings intervened, which not being relevant for the purpose of this petition, are not elaborated.
the leave to defend affidavit, the issues raised by the defendant were (01) limitation; (02) that cheques were not issued by the petitioner; (03) maintainability of the suit as summary suit and, (04) that the averments made by the plaintiff in the plaint were in contradiction with the averments in the complaint that was lodged on dishonor of the cheques.
Counsel for the petitioner would submit that in the plaint no averments justifying the institution of the suit as a summary suit are made and cheques having not been issued by defendant would not in any way bind the defendant and the suit itself was barred by limitation in absence of a specific date of debt or the transactions alleged to have taken place between the parties and that the averments as aforesaid were contradictory. In his submission, all the issues raised in the leave to defend affidavit went to the root of the matter and therefore the petitioner was entitled to unconditional leave to defend the suit and that the trial Court by imposing a cumbersome condition has virtually denied the leave.
the above submissions, learned Counsel for the respondents original plaintiffs would submit that the trial Court has in detail considered all the issues raised before it and has recored factual findings and the discretion having been properly exercised by it, this Court may not interfere under Article 227 of the Constitution of India. It was contended, while relying upon Hindustan Apparel Industries Vs. Fair Deal Corporation, New Delhi [AIR 2000 GUJARAT 261] that the cheque was a contract and debt was acknowledged by the defendant by issuing such cheques and that neither the account nor the signature on the cheque was disputed by the petitioner except for saying that the cheques were not issued by the petitioner. It was argued that cheques acknowledged the debt having been issued, the period of limitation would start from the date of issuance of cheque and therefore the suit was within the period of limitation.
may be mentioned here that the Court allowed the defendant to defend the suit, but on the condition aforesaid. The question that arises in this petition is therefore limited i.e. the extent to which this Court under Article 227 of the Constitution should interfere.
averment in the plaint admittedly does not define the date of the disputed transactions. A vague averment is made that since about two years when the parties had healthy relations, the money, as and when required by the petitioner, were lent by respondent. The date that is available on record is only that of the issuance of the cheques. It is vehemently submitted that issuance of cheque was sufficient acknowledgment within the meaning of Section 18 of the Limitation Act. On perusal of sub-section (1) of Section 18 of the Act, the significant words which are to be borne in mind are before the expiration of the prescribed period for a suit . The provision further contemplates the actions, if taken before the expiry of the prescribed period of limitation, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Thus, it is apparent that signing of the acknowledgment itself has to be within the period of limitation.
the instant case, there is nothing on record indicating the signing of the cheques by petitioner within the period of limitation and it is not possible to ascertain the period of limitation in absence of the dates of the transactions. The question of limitation therefore substantially arises for determination and it cannot be disputed that such a question goes to the root of the matter. The Courts under Order 37 of the Code has been vested with a discretion to grant a leave to defend the suit on condition or unconditionally. Such discretion must be exercised keeping in view the facts and circumstances of individual case. It is no doubt true that the Court while granting leave to defend can require the defendant to deposit the entire suit amount, but that will again depend upon the nature of issues raised before the Court. In a summary suit, where the question like limitation is raised and, if on prima-facie examining the such questions, any substance is found and for that reason a leave is granted, normally the Court would not impose harsh cumbersome condition which will virtually deny the leave. In the instant case, the question of limitation goes to the root of the matter and the condition requiring deposit of entire principal amount appears to be harsh.
the fact remains that two cheques allegedly issued by the defendant are on record of the trial Court, which were dishonoured. Whether or not, issuance of such cheques amounted to acknowledgment is an issue that deserves consideration at the time of trial. However, considering the fact that defendant had no explanation to the issuance of such cheques except for saying that they were not issued by him, at least, there is an acknowledgment of financial relation between the parties. Therefore, the case does not deserve unconditional leave as argued by the petitioner.
with the above factual and legal position, both the learned Counsel submitted that, ends of justice may be served by modifying the impugned order and requiring the petitioner to deposit 25% of the principal amount claimed in the suit, as condition for defending the suit instead of the entire principal amount as ordered by the Court below. Considering the above submission, it is deemed appropriate to modify the impugned order rather than remanding the matter to the trial Court, which will only result into further delay in the proceedings instituted in the year 2001.
the circumstances, the petition is partly allowed. 25% of the principal amount shall be deposited in the trial Court within a period of four weeks and the defendant may, if he so desires, file a written statement within period of four weeks thenceforth and then the suit shall stand transferred to the list of long causes. The impugned order is modified to the above effect. Rule is made absolute to the extent aforesaid.