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SCA/1895/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1895 of 2008
=========================================
M
T CHEM INDUSTRIES - Petitioner(s)
Versus
RUTURAJ
ENTERPRISES - Respondent(s)
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Appearance :
MR
HEMANT S SHAH for Petitioner(s) : 1,
None for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 24/06/2008
ORAL
ORDER
1. In
this petition under Article 227, the petitioner has challenged an
order dated 18.8.2000 below Exhibit 10 (Summons for Judgment) in
Summary Suit No.1328 of 2005, whereby the learned Court has granted
unconditional leave to respondent.
2. Mr.
Shah, learned advocate for the petitioner submits that in view of the
averments made in the petition, the learned Court ought not to have
granted unconditional leave to defend and the defendant ought to have
been put to some reasonable conditions. In light of the averments in
the pleadings before the trial Court, he submitted that the
respondent came out with a prima facie case only in respect of the
goods worth Rs.1,67,974/- whereas, claim of the petitioner is to the
extent of Rs.5,43,868.32ps. and that therefore, considering the
differential and balance amount, conditional leave ought to have been
granted, requiring the defendant to deposit the differential amount.
3. Considering
the findings recorded by the learned trial Court in the impugned
order dated 16.8.2007 and also upon taking into account the case of
the defendant, in para 8 to 10 of its reply, it appears that the
learned Court has not committed any error in granting unconditional
leave to the defendant. The learned Court has recorded that having
regard to the submissions made before the learned Court by the
respective parties and after taking into account the documents on
record and on considering the fact that the goods were delivered to
different parties as per the instruction of the defendant, it was a
case, wherein the defendant had clearly raised triable issues and
that the defendant has made a prima facie bonafide and plausible
defence, more particularly, in light of the opponents’ claim for
Rs.1,67,974/- as counter claim and that therefore, unconditional
leave to defend was justified. The said observation and findings are
supported by the material on record and that therefore, this Court is
of the view that no error has been committed in passing the said
order dated 16.8.2007. Even otherwise, the said order is
discretionary and therefore, there is no justification to interfere
with the petition under Article 227 of the Constitution of India.
4. Mr.
Shah, learned advocate, submits that it would in the interest of
both the sides that the proceedings may be expedited. It would be
open for the petitioner – original plaintiff to request, subject to
the roster (cause-list), the Court to fix the early date of hearing
in the present suit.
5. With
the aforesaid observations, the petition is disposed of with no order
as to costs.
(K.M.THAKER,J.)
ynvyas
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