KALAPI DEVELOPERS Vs. PRATHAM REALTY PVT LTD

JUDGEMENT

(1.) Being aggrieved by and dissatisfied with the order dated 30.4.2013 passed below Exh. 16 by the learned 16th Additional Sr.Civil Judge, Vadodara in Special Summary Suit No. 76 of 2012, the petitioner has filed this petition under Article 227 of the Constitution of India.

(2.) Heard the learned Advocates for the respective parties. Rule. Mr Samir J Dave, learned Advocate waives service of Rule on behalf of the respondent. With the consent of the parties, this matter is heard for final disposal.

(3.) M/S. Kalapi Developers is the petitioner/original defendant and M/s. Pratham Reality Pvt. Ltd. is the respondent/original plaintiff. The respondent/original plaintiff has filed Special Summary Suit No. 76/2012 against the petitioner/original defendant under Order 37 of the Code of Civil Procedure, 1908 for the recovery of Rs. 6,42,25,888/- alleging inter alia that taking advantage of the relationship established between the plaintiff and the defendant, the defendant had taken an amount of Rs. 4,50,25,000/- from the plaintiff with a promise that he would repay the loan amount within six months and further five different cheques for different amount mentioned in the summary suit were given by the defendant to the plaintiff. However, when the said cheques were deposited by the plaintiff in its account, the same were returned with an endorsement 'fund insufficient'. The plaintiff filed a complaint under section 138 of the Negotiable Instrument Act against the defendants. Thus the plaintiff prayed in the said suit that a decree of Rs. 6,42,25,888/- with interest at the rate of 24% per annum from the date of filing of the suit till realization may be drawn in favour of the plaintiff with special power to recover from the properties mentioned in the plaint and from the person and any other properties of the defendant. In the said summary suit, the defendant has filed affidavit of leave to defend-Exh.16 and denied the contents of the suit. On 30.4.2013, the learned 16th Additional Sr. Civil Judge, Vadodara partly allowed the application for leave to defend submitted by the petitioner/original defendant with a condition that the defendant has to deposit Rs. 4,50,25,000/- in the court within four weeks from the date of the said order. Against this order, the petitioner has approached this court for appropriate orders and directions with a prayer to allow the petitioner to defend his case unconditionally as the suit itself is not maintainable in view of the conditions of MOU dated 24.4.2010 and the court at Vadodara has no jurisdiction alleging that the plaintiff has suppressed material aspects related to MOU dated 24.4.2010 from the court while filing summary suit.