HARSHIT NAVNITBHAI SHAH Vs. BHARATBHAI JIVRAJBHAI BAGADIA

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner-original defendant has prayed for appropriate writ, order or direction quashing and setting the impugned order passed by the learned City Civil Judge, Court No. 7, Ahmedabad dated 21/07/2008 passed below Summons for Judgment, Exh. 9 in Summary Civil Suit No. 2252 of 2007 by which the learned trial Court has granted conditional leave to the petitioner " defendant to contest the suit on his depositing Rs. 4 Lacs before the learned trial Court within a period of four weeks.

(2.) THE respondent-original plaintiff had instituted Summary Suit No. 2252 of 2007 claiming Rs. 7,85,400/- from the petitioner-defendant submitting that the defendant was partner of one Harshit Plast, Changodar and the said firm obtained a loan from Bhagyoday Co-operative Bank Ltd. , of Rs. 28 Lacs which was to be paid to the Bank and as per the understanding between the defendant and other partners, the liability of the defendant was fixed at Rs. 6,54,500/- and the said amount was to be paid by the defendant to the Bhagyoday Co-operative Bank Ltd. As per the plaintiff, as the defendant was unable to pay dues of the Bank and discharge his obligations, the Bhagyoday Co-operative Bank Ltd. , also initiated legal proceedings against the defendant and therefore the defendant requested to the plaintiff who is close relative of defendant to help him in such crucial condition and further requested to pay up amount of Rs. 6,54,500/- with the Bank of his liability. As per the plaintiff, the defendant also promised that he will repay the said amount with interest @ 12 % per annum. Therefore, on the said assurance the plaintiff paid up Rs. 6,54,500/- to the Bank for and on behalf of defendant. As against above, the defendant had issued 17 cheques for the said amount drawn on State Bank of India, Naroda Road Branch, Ahmedabad each of Rs. 38,500/- and also assured that on respective dates, cheques will be honoured and the plaintiff will receive the cheque amount. Thus, the defendant was indebted to the plaintiff of Rs. 6,54,500/ -. As per the plaintiff, he presented eight cheques each of Rs. 38,500/- respectively with Canara Bank, Ashram Road Branch, Ahmedabad which came to be returned dishonoured on the ground of "account Closed". The plaintiff further submitted that as defendant had closed his A/c. With State Bank of India and therefore he did not deposit remaining cheques for the encasement. After returning of the above above stated cheques as dishonoured, the plaintiff served a legal notice upon the defendant and thereafter even the plaintiff had also filed two Criminal Case against the defendant for the offences punishable under Section 138 of the Negotiable Instruments Act. As the above amount was not paid to the plaintiff, he had instituted the aforesaid summary suit for recovery of Rs. 7,85,400/ -. In the said summary suit, the plaintiff took out summons for judgment and on having been served with the summons, the plaintiff herein original defendant submitted leave to defend application denying the issuance of all the cheques as well as even denying the fact that the Bank Account from which cheques were issued was his Bank Account.

(3.) THE learned Judge of the City Civil Court, Ahmedabad by impugned order dated 21/07/2008 granted conditional leave to the petitioner-defendant to contest the suit on merits on his depositing Rs. 4 Lacs only in the Court. Being aggrieved and dissatisfied with the order passed by the learned City Civil Court, Ahmedabad, granting conditional leave to defendant-petitioner to defend the suit, the petitioner-original defendant has preferred the present Special Civil Application under Article 227 of the Constitution of India.