JUDGMENT
1. The short point raised in the present Civil Revision Application is regarding the correctness or otherwise of the order dated 30th January 1989 granting conditional leave to defendant No. 1 in summary Suit No. 1785 of 1988. The said Summary Suit No. 1785 of 1988 was instituted by the first respondent plaintiff in the City Civil Court, Bombay, claiming a sum of Rs. 45, 410/- due under three bills as under:–
(1) Bill No. 101,
dated 09-01-85 = Rs. 19,482.00.
(2) Bill No. 105,
dated 16-01-85 = Rs. 09,702.00.
(3) Bill No. 108,
dated 18-01-85 = Rs. 09,714.00.
The contention of the plaintiff is that the goods were delivered for processing on date earlier than the date mentioned on the bill as the date of the receipt of the goods by the defendant No. 1. The plaintiff himself had sent the first notice on 16th April 1985, followed by the second notice sent through his Advocate, on 5th September 1985. Unfortunately, it appears that there was no response from the first defendant to either of these two notices. The suit was filed on 8th January 1988. Then summons for Judgment was taken out on 8th July 1988. The first defendant raised certain contentions, some of which were technical, which need not be gone into at this stage. As far as the merits are concerned, the contentions sought to be raised were that the goods were found to be of an inferior quality and suffered from some weaving defects and hence, the defendants were either not liable to pay the amount claimed or were liable to pay the lesser amount. The fact that the goods were initially delivered to the defendants as per the details mentioned in the 3 bills, referred to above, were not disputed. The fact that the goods were supplied for processing at the particular place, as per the instructions of the defendants, could also not be seriously disputed. What was disputed was the fact that the goods supplied were of inferior quality which necessitated certain adjustment.
2. Relying upon these pleas, the learned
trial Judge came to the conclusion that as far
as the first defendant was concerned, the
defence appeared to be illusory, sham and
moonshine and hence under the circum
stances it was not a case for grant of
unconditional leave. The learned trial Judge,
therefore, directed the defendant No. 1 to
deposit a sum of Rs. 25,000/- as also to
further deposit the admitted claim of
Rs. 5718/-, with liberty to the plaintiff to
withdraw the said amount of Rs. 5718/- only.
Being aggrieved by this order dated 30th
January 1989, the present C.R.A. is filed by
the 1st defendant.
3. Mr. Shah, the learned counsel appearing for the petitioner, has raised two principal contentions. In the first place, Mr. Shah’s contention is that this is a case falling under O. 37, sub-rule (2). It has therefore, necessarily to be a written contract or an enactment, as indicated in the opening para of sub-rule(1) of Rule 2 of O. 37. According to the learned Counsel inasmuch as the claim in the present suit is to recover the price of the goods supplied to the defendants, it would not be a claim under a written contract or an enactment. On the contrary, Mr. Parekh, the learned counsel appearing for the plaintiff, has invited my attention to an un-reported Judgment of this Court _in_ Summons for Judgment No. 23 of 1976, in Suit No. 1405 of 1975, decided on 9th April 1976. The facts in the said case of Jaishree Chemicals, decided on 9th April 1976, were somewhat similar to the facts in this case; where in respect of goods supplied to the defendants, the plaintiffs had relied upon the challans, receipt at the foot thereof acknowledging the receipt of the goods and the bills subsequently sent by the plaintiffs mentioning the price, the receipt whereof was not denied, as also the subsequent conduct of the parties. A perusal of the said Judgment would show that the words “arising on a written contract or on an enactment” have been given an extended meaning as under:–
“Now it is possible to give two answers to this contention. In the first place the words “Written contract” occurring under the amended provisions must be given an extended meaning and if it is possible to spell out an agreement enforceable at law to do something to be found in writings which bind the parties, then surely such agreement would emanate from what may be considered to be a “written contract”. Even if the conclusion is that there was no written contract between the parties, it is possible to urge that the amount payable to the plaintiffs i.e. the amount mentioned in the bills was due to them on an enactment; the enactment in this case would be the Indian Contract Act and the relevant provisions would be S. 70 thereof. In this case, therefore, it is clear that the plaintiffs have delivered the goods to the defendants not intending to do so gratuitously and the defendants have enjoyed the benefit of them and under the provisions of S. 70, which is a statutory provision, the defendants are liable to pay compensation in respect of such goods to the plaintiffs.”
In the light of the above judgment, I am of the opinion that the first contention raised by Mr. Shah has no merit.
4. The learned Counsel Mr. Shah then placed reliance upon two Judgments of the Supreme Court viz.:–
(i) Santosh Kumar v. Bhai Mool Singh, ; and
(ii) M/s. Mechelec Engineers & Manufacturers v. m/S. Basic Equipment Corporation, .
Now, a perusal of the facts in Santosh Kumar’s case would show that though the defendants in that case had admitted the execution of the cheque, they had pleaded that the cheque was given as a collateral security for the price of the goods which the plaintiff had supplied to the defendants. It was further contended by the defendants that the goods were actually paid for, at times in cash and at times by cheque and that the dishonoured cheque had really served its end. The defendants in Santosh Kumar’s case had set out the exact date on which, according to them, payments have been made by cheques and had given the cheque numbers. Relying on these facts, the Supreme Court observed as page 1716 of the report as under:–
“Now, what is the position here? The defendants admitted execution of the cheque but pleaded that it was only given as collateral security for the price of goods which the plaintiff supplied to the defendants. They said that those goods were paid for by cash payments made from time to time and by other cheques and that, therefore, the cheque in suit had served its end and should now be returned. They set out the exact dates on which according to them, the payments had been made and gave the numbers of the cheque.”
It was in these facts that the Supreme Court came to the conclusion that despite the fact that the suit was based on a dishonoured cheque, unconditional leave had to be granted to the defendants without giving security. I do not think that there can be any comparison between the facts of the present case and the facts in Santosh Kumar’s case.
5. In the 2nd case before the Supreme Court viz. M/s. Mechelec Engineers’ case, though the suit was based on a cheque, the defendant firm while admitting the issue of the cheque by its managing partner denied any privity of contract with the plaintiff/firm. The defendant in that case had its own version as to the reason and purpose for which the cheque was drawn. In the opinion of the Supreme Court, it was not a case where it could be said that the defendant had no defence or that his defence was illusory, sham or practically moonshine. The Supreme Court finally concluded in Paras 8 and 9 of the Judgment at page 690 of the Report that it was’only in cases falling under certain classes that an imposition of the condition was justified. In the facts of the case before the Supreme Court, the Supreme Court further came to the conclusion that the High Court in its jurisdiction under S.115 of the Code of Civil Procedure had erred in interfering with the discretionary order that was passed by the Addl. district Judge of Delhi granting unconditional leave. I do not think that the ratio of the said Supreme Court Judgment is of any assistance to Mr. Shah.
6. In view of the above facts, I do not see any reason to interfere with the discretion exercised by the learned Judge in the present case. In the result, the Revision Application is liable to be rejected. Accordingly, the defendant No. 1 is directed to deposit the amount of Rs. 25,000/-, as also the admitted claim of Rs. 5718/- in the trial Court within 8 weeks from today, with liberty to the plaintiff to withdraw the amount of Rs. 5718/- and the balance being kept in the Court. Leave to defend is accordingly granted to the defendant No. 1 on the said condition. As far as the order granting leave to defendant No. 2 is concerned, the said order is maintained. The Written Statement to be filed within 4 weeks after the expiry of the said period of 8 weeks from today. Usual order for discovery & inspection thereafter. The suit to be placed for trial as a commercial cause. Rule discharged. No order as to costs.
7. Order accordingly.