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SCA/12942/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12942 of 2008
=========================================================
BATTIWALA
ASHISH CHANDRAKANTBHAI - Petitioner(s)
Versus
GRUH
FINANCE LTD & 2 - Respondent(s)
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Appearance :
MR
SIDDHARTHA SAMAL for Petitioner(s) : 1,
None
for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 21/10/2008
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India,
the petitioner ? original defendant has prayed for an appropriate
Writ, direction and/or order quashing and setting aside the order
passed by the learned Principal Civil Judge, (S.D.), Anand dated
20.09.2008 passed below Summons for judgment / leave to defend
application in Summary Suit No.86 of 2005, by which the learned trial
Court has granted conditional leave to defend to contest the
aforesaid suit on deposit of only 10% of the amount claimed in the
Suit.
2. Loan
was advanced in favour of the petitioner and the said loan was not
repaid. On the basis of promissory note and other documents,
respondent No.1 ? original plaintiff had instituted Summary Suit
No.86 of 2005 in the Court of learned Principal Civil Judge,(S.D.),
Anand for claiming Rs.4,82,220/- together with further interest at
the contractual rate from the date of filing of the Suit till
realization. In the said Suit, the petitioner submitted application
for leave to defend submitting that the loan amount has not been
received by the petitioner and entire amount has been paid by the
original plaintiff to the builder who has committed fraud. It is
submitted that even Builder has filed affidavit accepting the
liability and accepting the fraud and has accepted to repay loan. It
is submitted that considering above the learned trial Court ought to
have granted unconditional leave to the petitioner to defend the
Suit.
3. Having
heard the learned Advocate appearing for the petitioner and
considering the suit as well as the impugned order, what is emerging
is that it is not disputed that the petitioner ? original defendant
had executed necessary documents, promissory note etc. with the
original plaintiff while sanctioning the loan and it is admitted
position that the loan has been sanctioned in favour of the
petitioner ? defendant. Now affidavit relied upon by the
petitioner that the Builder has accepted liability and that he has
accepted fraud is concerned, it is between the petitioner and builder
and same may not be binding upon respondent No.1 ? original
plaintiff. Respondent No.1 ? original plaintiff has right to
recover the loan amount from the petitioner ? defendant who has
executed the loan agreement etc. and in whose favour loan is
sanctioned. Considering above, when the learned trial Court has
granted conditional leave to the petitioner ? defendant to defend
the Suit on deposit of only 10% of the amount, it cannot be said that
any illegality has been committed by the learned trial Court. On the
contrary it appears that the learned trial Court has become too
liberal in imposing condition of deposit of only 10% of the amount
claimed in the Suit. No case is made out to interfere with the order
passed by the learned trial Court under Article 227 of the
Constitution of India. There is no substance in the present Special
Civil Application and requires to be dismissed and accordingly it is
dismissed.
[M.R.Shah,J.]
satish
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