CHIRAGKUMAR LABHUBHAI PATEL Vs. REALWAX INDUSTRIES

JUDGEMENT

(1.) The present Special Civil Application impugns the judgment and order dtd. 6/12/2023 passed under Exh.31 and Exh.35 of the Commercial Civil Suit No.87 of 2016 whereby the learned Principal Senior Civil Judge, Rajkot has granted conditional leave to defend on deposit of Rs.79,77,023.00 by the defendants ' petitioners herein.

(2.) The brief facts of the case are that the parties to the suit are conducting business with each other since April/May-2010. As per the agreed terms, after the delivery of the goods by the plaintiff ' respondent No.1 herein to the respondent No.2 firm, various invoices came to be issued. However, the dispute arose due to non-payment of the invoices so raised. During the business transactions, some cheques came to be issued in favour of the respondent No.1 ' plaintiff which came to be dishonoured with an endorsement 'funds insufficient'. Further, the respondent Nos.2 and 3 addressed a letter to the respondent No.1 company admitting and acknowledging dues to the extent of Rs.79,77,023.00 out of total dues of Rs.93,46,023.00 as claimed by the respondent No.1 ' plaintiff. Some more cheques, thereafter, came to be issued in favour of the respondent No.1 ' plaintiff for the purpose of clearing the outstanding dues. However, the said cheques also came to be dishonoured with the endorsement 'drawer's signature differs'.

(3.) Mr. Mehul S. Shah, learned senior counsel appearing for the petitioners, submitted that the respondent No.2 ' firm being a partnership firm and as the petitioners herein were the dormant partners thereof, they did not participate in the day-to-day working of the said firm. He submitted that the respondent No.1 - firm has filed summary suit against the petitioners and the respondent Nos.2 and 3. However, since the said suit is raising triable issues and also claims 18% interest on the amount due, which is not part of the contract between the parties, the suit cannot be said to be summary in nature and hence, unconditional leave ought to have been granted by the Trial Court. He submits that even otherwise, the commercial suit is not maintainable in its present form in view of the provisions of Order XXXVII Rule-2 of the Civil Procedure Code, 1908 ["CPC' for short], as the issues raised by the petitioners and the respondent Nos.2 and 3 herein are triable issues. It was vehemently urged that it is settled law that once the suit raises triable issues, unconditional leave to defend has to be granted to the defendants and it no more remains summary in nature.