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SCA/1333/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1333 of 2011
=========================================================
BIPINBHAI
S TAMUKAWALA "NAIRUTI DEVELOPERS" - Petitioner(s)
Versus
RAMCHANDRA
MARUTIRAO MULHEKAR - Respondent(s)
=========================================================
Appearance
:
MR
MANTHAN K BHATT for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/02/2011
ORAL
ORDER
1.0 By
way of present petition, the petitioner has challenged the order
dated 14.12.2010 passed by the learned 6th Additional
Civil Judge, Vadodara below Exh. 11 in Summary Suit No. 54 of 2009
whereby the learned Judge while granting leave to defend the suit
imposed condition on the petitioner to deposit Rs. 2,75,000/- in the
Court as a deposit withing fifteen days.
2.0 The
facts of the case in brief are that on 20.05.2006, the petitioner was
served with the notice by the respondent alleging that the petitioner
had borrowed Rs. 2, 75, 000/- in the year 1998 from the respondent
and had assured to repay the same with 18% interest. It is also
alleged in the notice that as token of assurance, the petitioner had
drawn promissory notes in favour of the respondent. Based on this
note, the respondent demanded Rs. 7, 50,556/- from the petitioner.
The reply to demand notice is given by the petitioner denying each
and every allegations made in the demand notice especially making of
promissory notes or any receipts or any confirmation letters thereof.
The respondents filed summary suit before the learned Civil Judge
after three years along with affidavit in support of summons for
judgment. The petitioner filed application before learned Civil Judge
(S.D.) under Order 37 Rule 3 seeking leave to defend the suit
unconditionally. The learned Judge granted application on imposing
the aforesaid condition. Hence, the petitioner has preferred present
petition seeking deletion of the condition imposed upon by the
learned Civil Judge granting leave to defend.
3.0 As
a result of hearing and perusal of the documents on record, it is
found that suits are filed under Order 37 which provide special
summary procedure in special categorical cases, on the basis of
promissory notes, those were executed in 1998-99 while these suits
are filed in the year 2009, but as per say of respondent, the
petitioner has issued debt confirmation letter at end of every
accounting year that has been produced with the document list. Hence,
the suit is based on promissory note as well as debt confirmation
letters. The trial Court has also considered principles established
by the Hon’ble Apex Court in AIR 1977 (S.C.) 577 and came to the
conclusion that the transaction is as per the promissory note as per
the statement of other other financial year and put a condition
approximately below 25% of the amount. In my view the condition
imposed by the trial Court is just and proper. No interference is
called for. The petition stands disposed of accordingly. However,
time to deposit the amount as directed by the trial Court is extended
upto two weeks from today.
4.0 With
the above observation, the petition stands disposed of.
(K.S.JHAVERI,
J.)
niru*
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