NARANBHAI MOHANBHAI SOLANKI Vs. GAURIBEN CHANDRAVADAN PARMAR

JUDGEMENT

(1.) The present petition is filed by the petitioner challenging the common order dtd. 16/12/2022 passed below Exh.15 - Summons for Judgment and below Exh.18 (Leave to Defend) in Summary Suit No.284 of 2022 by the Small Causes Court No.6, Ahmedabad, whereby the trial Court has rejected the summons for judgment filed by the plaintiff vide Exh.15 and allowed the leave to defend filed by the defendant vide Exh.18 and thereby granted leave to defend the suit unconditionally in favour of the defendant.

(2.) Learned advocate for the petitioner has submitted that the trial Court has committed gross error in not considering the provisions of Order XXXVII of the Code of Civil Procedure, 1908 when the cheque is issued by the father of respondents No.2 and 3 and husband of respondent No.1, who has expired prior to filing of the suit. He has further submitted that even from the application for leave to defend, it transpires that the defendants are not disputing the fact that the cheques are issued by the deceased person, who happens to be the husband of respondent No.1 and father of respondents No.2 and 3. He has further submitted that when the promissory note is executed, at least some conditions to deposit some amount is required to be imposed. He has relied upon the various orders passed by the co- ordinate Bench of this Court as well as the judgment of the Hon'ble Apex Court. He has submitted that when the transaction is covered by the some documents executed between the parties and also followed by the cheques issued by the parties, this Court should exercise the discretion in favour of the petitioner by imposing some conditions. He has further submitted that the respondents have also admitted that the cheques in question are also issued in favour of the petitioner towards the security and considering the aspect that the respondents are not in a position to deny their liability, some conditions are required to be imposed. He has submitted that this petition may be allowed.

(3.) I have heard learned advocate for the petitioner. I have gone through the material on record. I have also perused the provisions of Order XXXVII of the Code of Civil Procedure, 1908, which reads as under :