CROMPTON GREAVES LTD Vs. SUPREME CORPORATION

JUDGEMENT

(1.) A summary suit was instituted by the petitioner for the amount due and payable by the respondents at the foot of the account of the petitioner. After following necessary procedure under Order XXXVII of the Code of Civil Procedure ( for short "CPC" ), an affidavit for leave to defend the suit came to be filed by the respondents raising various issues, and on consideration of such issues and the case on hand, the trial court passed an impugned order below Exh.17 granting leave to defend the suit. Aggrieved, the petitioner ­ original plaintiff is before this Court.

(2.) TO show that one Ratankumar Bajoria, father of the second respondent, was managing the affairs of the proprietory concern of the first respondent, reliance was placed by the learned counsel for the petitioner upon letter Annexure "B" whereby said Ratankumar Bajoria was alleged to have acknowledged the dues; the reminder thereof dated 12.2.1998; the signature of Mr.Bajoria on the agreement under Section 60 of the Gujarat Sales Tax Act, 1969 as also the form signed by said Bajoria under Rule 8 of the Sales Tax (Gujarat Rules) 1970 indicating his capacity as a Manager of the first respondent and the letter issued by said Bajoria forwarding two cheques dated 12.12.1997 and the statement of account for the year 19961997 showing the amount due and payable to the petitioner. Learned counsel for the petitioner strenuously argued that these are the sufficient documents indicating the due as also the persons against whom the original plaintiff was entitled to claim. According to learned counsel, the learned trial Judge himself was not sure as to whether this was a case for grant of leave to defend on various issues even as he used the word "may" in para 12 of the impugned order. It was submitted that therefore the trial court committed an error in allowing the defendants to defend the case.

(3.) HAVING considered the arguments advanced by the parties, in the opinion of this Court, the learned trial Judge had rightly addressed the issues before him. A summary suit can be disposed of in a summary way only and only if there are no triable issues pleaded in leave to defend affidavit. In the event of grant of leave to defend, the only consequence that is achieved is that the suit goes for a long trial so as to enable the parties to adduce appropriate evidence for sustaining their respective claim. The court below found that the suit was merely based upon entries in the accounts but the accounts were required to be established; that the alleged acknowledgment of debt in the letter Annexure "B" was not signed by the defendant but by someone else and the plaintiff had averred that he was asking for interest on the outstanding at the rate of 21% p.a. on the basis of custom of trade etc., and that the acknowledgment of debt by a third party would not bind the proprietor of a firm. In the opinion of this Court, all these issues could not have been addressed under the summary procedure under Order XXXVII of CPC. It is also noted that in the cause title of the plaint, the second respondent has been shown as proprietor of the firm, whereas, in certain other documents, Mr.Ratankumar Bajoria has been shown as proprietor. Therefore, the issues does arise as to who amongst the two is indebted to the petitioner. Further, the issue as to whether by mere fact of a person being shown as Manager as is being shown by the petitioner, he would be responsible or his acts will be bind the proprietor of a firm shall have to be addressed in long trial suit. Under such circumstances, this Court is unable to see any infirmity in the impugned order. The petition deserves to be dismissed, having no merits. The same is dismissed. Rule is discharged with no order as to costs.