PUSHPA D SOOD Vs. BOBCARDS LTD

JUDGEMENT

(1.) In this writ petition under Article 227 of constitution of India the petitioner/original defendant in summary suit number 454/2003 on the file of third joint single Judge, Senior Division, Nagpur, challenges the orders dated 2nd September, 2004 and 20 September, 2004 by which the said court has directed the petitioner defendant to deposit 50% of the amount claimed in this suit as a condition for granting leave to defend this suit. I have heard the petitioner in person on 21st December, 2004 and thereafter also heard her learned Advocate Shri Bari on 22nd December, 2004. Advocate Issac for respondent appeared in response to caveat and he was also heard.

(2.) The suit filed by respondent is expressly under provisions of order XXXVII of the Code of Civil Procedure and it is for recovery of amount outstanding to the credit of present petitioner against a credit card by name "bobcard Silver" issued to her. The grievance made by petitioner is that she was given initially unconditional leave to defend the case and the said order has been later on nullified by passing separate order below Exhibit 15 and Exhibit 16 on 2nd September, 2004. Exhibit 15 is the application for grant of leave to defend and for permission to file written statement moved by petitioner and on it the counsel for plaintiff/present respondent has given no objection for short adjournment. The learned Court below has passed one word order "allowed" on this application, it appears that thereafter the petitioner, has filed written statement on 8th January, 2004 and also a rejoinder to of application dated 12 April, 2004 (Exhibit 15). On this rejoinder, say has been given by respondent/plaintiff mentioning that no triable issue is involved and therefore the application should be rejected. The learned trial Court has on 2nd September, 2004 passed, order holding that defendant has triable issue with regard to settlement of account but it is only in relation to difference of amount and the transactions have been admitted by her. Hence it allowed the application and granted relief to petitioner/defendant to defend the suit subject to deposit of 50% of the amount of total claim of Rs 1,00353.40 in Court within period 15 days. Thereafter the petitioner moved application for review contending that on 12 April, 2004 she was already granted leave to defend after considering facts and circumstances which appear in paragraph 3 of that application as grounds (a) to (1). This application has been rejected by trial Court on 20th September, 2004 by observing that no ground for review has been made out. It appears that on same day the defendant moved application under section 151 of Civil Procedure Code for grant of stay to further proceedings in summary suit and also to review application till decision of application for transfer of these cases (P. C. this case) before District and Sessions Judge. This application has also been rejected on same day vide learned trial Court after observing that the application is not tenable as defendant failed to comply with the orders passed below Exhibits 15 and 16 within stipulated period.

(3.) Petitioner as also her advocate have raised only one ground namely that their application seeking leave to defend was already allowed by the trial Court on 12 April, 2004 and as such it was not open to the said Court to impose any condition of deposit latter on. Advocate for petitioner has argued that said exercise is without jurisdiction. He further contended that the petitioner is ready and willing to settle the matter with the respondents. He has placed reliance upon the judgment of Honourable Apex Court in case between State Bank of saurashtra vs. Messer's Ashit Shipping Services Private Limited reported at 2002 supremecourtonline. com case number 225 particularly paragraph 10 in which the earlier judgment of Honourable Apex Court reported at AIR 1977 SC page 577 has been quoted. It is his contention that as the defendant satisfied the Court that she has good defense to make, unconditional leave to defend was granted. As against this learned advocate for the respondent relied upon judgment of this court reported at 2000 (1) Mh. L. J. page 744 between Central Bank of India vs. Manipur Vasant Kini to contend that suit filed by bank based on the use of credit card is maintainable as summary suit. He also relies upon division bench ruling of this Court reported at 1974 Mh. LJ. 947 = AIR 1975 Bombay 128 between bombay Enamel Works vs. Purshottam S. Somaiya to argue that the trial Court was justified in granting conditional leave and no interference is called for in exercise of writ jurisdiction. He also relies upon judgment of this Court reported at 2001 (1) Mh. LJ. 534, Leela Capital and Finance Ltd vs. Modiluft Ltd. to argue that when there is admission on part of defendant the trial Court is justified in ordering deposit.