DILIP R. PATEL v. J. K. SYNTHETICS LIMITED — 1994 DIGILAW 101 (GUJ)

VYAS, J. ( 1 ) ). The petitioner in all these Civil Revision Applications who is either original defendants Nos. 1, 2 or 3 in the five suits being Summary suits Nos. 5349 of 1990, 4664 of 1990, 4766 of 1990, 4765 of 1990 and 5166 of 1990 have challenged the orders dated 4-3-1993 passed by the learned Chamber Judge, City Civil Court, Ahmedabad granting conditional leave to defend the suit filed by the respondent No. 1 in all these Civil revision Applications. ( 2 ) ). The respondent No. 1 who is the common plaintiff in all the suits has filed the aforesaid suits against the Company or the partnership firm or the sole proprietor concerned and the same has been shown as defendant No. 1 while the defendant No. 2 Dilip Patel and defendant no. 3 Nitin Patel has been shown in each of the suits as Director or a partner or a sole Proprietor of the concerned defendant No. 1 In substance, the defendants Nos. 2 and 3 are common in all the suits. ( 3 ) ). Summary Suit No. 5349 of 1990 has been filed by the respondent no. 1 against Nubid Agency Ltd. as well as the said two Directors to recover Rs. 58,86,318. 42 ps. wherein the learned Chamber Judge granted conditional leave to defend the suit on each of the defendants depositing a sum of Rs. 25 Lacs. Against the said order, C. R. As. Nos. 1235, 1234 and 1238 of 1993 have been filed by the defendants Nos. 1, 2 and 3 respectively. Summary Suit No. 4664 of 1990 has been filed by the respondent No. 1 against Deepam Trading Company - a firm by alleging that the defendants Nos. 2 and 3 are the partners, to recover a sum of rs. 1,09,49,001/- wherein the learned Chamber Judge granted conditional leave to defend the suit upon each of the defendants depositing a sum of Rs. 40 Lacs. Against the said order C. R. As. Nos. 1229, 1228 and 1230 of 1993 have been filed by the firm as well as defendants Nos. 1, 2 and 3 respectively. Summary Suit No. 4766 of 1990 has been filed by the respondent No. 1 against the firm M. Dimple and Co. by alleging that the defendants Nos. 2 and 3 are its partners to recover a sum of rs. 12,80,864. 41 ps. 1, 2 and 3 respectively. Summary Suit No. 4766 of 1990 has been filed by the respondent No. 1 against the firm M. Dimple and Co. by alleging that the defendants Nos. 2 and 3 are its partners to recover a sum of rs. 12,80,864. 41 ps. wherein the learned Chamber Judge granted conditional leave to defend the suit upon each of the defendants depositing a sum of Rs. 5 Lacs. Against the said order, again three C. R. As. Nos. 1231, 1232 and 1233 of 1993 have been filed by the said defendants. Summary suit No. 4765 of 1990 has been filed by the respondent No. 1 against the three defendants - the defendant No. 1 being a partnership firm, namely, G. D. Traders and the defendants Nos. 2 and 3 being their partners to recover a sum of Rs. 25,66,800. 67 ps. wherein the learned chamber Judge granted conditional leave to defend the suit upon each of the defendants depositing a sum of Rs. 10 Lacs. Against the said order, the defendants Nos. 1, 2 and 3 have filed C. R. As. Nos. 1226, 1225 and 1227 of 1993. Lastly, Summary Suit No. 5166 of 1990 has been filed by the respondent No. 1 against the defendant No. 1 a sole Proprietor and two others to recover a sum of Rs. 79,54,469. 10 ps. wherein the learned Chamber Judge granted conditional leave to defend the suit upon each of the defendants depositing a sum of Rs. 25 Lacs. Against the said order, C. R. As. Nos. 1236 and 1239 of 1993 have been filed by the defendants Nos. 1 and 3 respectively. ( 4 ) ). Mr. A. L. Shah, learned Advocate for the petitioner in all these C. R. As. has made a grievance that inspite of the fact that in the leave to defend applications as well as in the subsequent affidavits filed by the petitioners which are on the record of the case, the petitioners have pointed out number of triable issues, they have not at all been considered by the learned Chamber Judge and stereo-type orders have been passed in all the suits imposing condition to deposit huge amounts for granting leave to defend. In some cases, the order to deposit exceeds the claim amounts for granting leave to defend. Mr. In some cases, the order to deposit exceeds the claim amounts for granting leave to defend. Mr. Shah, therefore, challenged the impugned order on the ground that it does not refer to any of the submissions made in the leave to defend applications and/or other affidavits, and secondly, by imposing condition to deposit a huge amount, the petitioners are practically denied the right to defend the suit as, according to the submission of Mr. Shah, it is not possible for the petitioners to deposit such huge amount fixed by the trial Court. Mr. Farooqui, learned advocate appearing for the respondent No. 1 in all the C. R. As. while supporting the impugned order of the learned Chamber Judge has submitted that it is not obligatory on the learned Chamber Judge to disclose any reasons while passing the orders grantirg conditional or unconditional leave. Mr. Farooqui submitted that after considering the material on record submitted by both the parties, the learned Chamber Judge has rightly passed the impugned order. In the present Revision Applications on behalf of the respondent No. 1 objection was raised that the petitioner is not entitled to file 14 Revision Applications against five impugned orders, passed in five different suits. Mr. Shah for the petitioners has pointed out that all the defendants in five different suits have different cause of action and it is their say before the trial Court also that defendants Nos. 2 and 3 in all the five suits are in fact not even the partners and/or Directors and/or the sole Proprietor of the defendant No. 1 in the respective suits and in view of these peculiar facts, the defendant in order to protect his own interest has filed separate Revision Application. In my view, this question is not required to be dealt with at present as I am not deciding these c. o. s. on merits. Now, all the defendants while denying their liability to pay the amount claimed by the original plaintiff have by filing application for leave to defend raised number of grounds. It is equally true that the respondent No. 1-original plaintiff by filing further affidavits against the said application justified its case. In view of these rival contentions, the Court is required to consider the same before granting leave either conditional or unconditional as the case may be. It is equally true that the respondent No. 1-original plaintiff by filing further affidavits against the said application justified its case. In view of these rival contentions, the Court is required to consider the same before granting leave either conditional or unconditional as the case may be. On a mere perusal of the impugned order, it is clear that the learned Chamber Judge has granted conditional leave to defend the suit by imposing condition to deposit the amount stated therein. It is true that it is stated therein that upon reading the Summons for Judgment, the affidavits mentioned in the list and after hearing the learned Counsels for the parties, the order is passed, but it does not disclose as to what is the ultimate analysis about the case put forward by the defendant ? Whether there is a triable issue therein or not ? Whether the defence is sham, bogus moonshine, or bona fide ? Now, in absence of this finding, it is not possible for this Court to decide the questions which are raised in these Revision applications. This Court must have some material in the shape of views of the trial Court, in absence of which, it is not possible for this Court to go into the merits of the case while exercising revisional jurisdiction. My attention has been invited by Mr. Farooqui to the judgment of the Division Bench of this Court reported in the case of Vijaykumar K. Shah v. Firm of Pari Nareshchandra and Anr. , (1968) IX GLR 238 wherein after considering Rules 142 to 148a of the Ahmedabad City Civil Court rules, 1961 and the Rules enacted in Order 37, Civil Procedure Code, has held "that the summary procedure as prescribed in Order 37 and the Rules enacted in Order 37 of the Civil Procedure Code nowhere lays down that an order granting or refusing leave to defend the suit must contain the reasons for the making of the order. The order to be made by the Judge is not required to be supported by a judgment setting out the reasons which weighed in making the order. There is nothing in Rules 142 to 148a which requires that the order must disclose the reasons in support of it or that it must be accompanied by a judgment giving the grounds in support of the order. There is nothing in Rules 142 to 148a which requires that the order must disclose the reasons in support of it or that it must be accompanied by a judgment giving the grounds in support of the order. " In view of this judgment, it was submitted that as the learned chamber Judge is not required to give reasons, no reasons are disclosed in the impugned order and on the basis of the material available before the learned Chamber Judge, the case of the defendant has been considered and the condition is imposed. Mr. Shah, learned Advocate for the petitioner on the other hand has placed reliance on a later judgment of the Division Bench of this Court reported in the case of The New Ashapuri Co-operative Housing society Ltd. and Am. v. Arvindkumar Manila. Patel, (1975) XVI GLR 53 wherein though it is not directly observed that the trial Court is bound to give the reasons while granting conditional or unconditional leave, however, the observations made, particularly, in Para 11 of the judgment would clearly reveal that while passing the orders of granting conditional or unconditional leave, the Chamber Judge is required to pass a speaking order. It has been observed that :"now whether or not the defence in fact raises a triable issue and whether or not it is in fact bona fide or otherwise, is surely not a question of exercise of discretion by the trial Court. Nor is it a question on which the trial Court can hold any view. It cannot be a matter of ipse dixit of the trial Judge. What is material and relevant is not whether the trial Court believes that there is no triable issue. What is material and relevant is whether there "in fact" exists a triable issue. What matters is not whether or not the trial Court "believes" it to be mala fide. It depends upon whether or not in reality the defence is lacking in good faith. There is a distinct difference between the two. The existence or otherwise of triable issue and bona fides does not and cannot depend on the whim, pleasure or caprice of a Judge or an oracular pronouncement made by him. It is not mala fide because the trial Judge says so. There is a distinct difference between the two. The existence or otherwise of triable issue and bona fides does not and cannot depend on the whim, pleasure or caprice of a Judge or an oracular pronouncement made by him. It is not mala fide because the trial Judge says so. Therefore, if the trial Court says otherwise, does a defence which in reality and truth discloses a triable issue and bona flde plea become otherwise ? And will the High Court be obliged to pull down the shutters and place the blinkers on its eyes ? Must the High Court refuse to see what it clearly sees ? Again, it is wholly wrong to say that it is a matter of discretion of the trial Court. Has the trial Court discretion to say that the defence is mala fide and there is no triable issue even if it is otherwise ? It would be irrational to say so. "it has been further observed that :"all that the trial Court has done is to pass a non-speaking order imposing a condition which carries the implication of want of triable issue or lack of bona fides or of both. It does not reflect any finding. What can an Appeal Court do under the circumstances ? It is not possible to take the view that the legislature ever intended to deprive the defendant to obtain decision on the merits of the case notwithstan- ding the fact that he has a bone fide defence which if he is allowed to plead he may succeed. These are weighty circumstances which must be taken into account in pronouncing on the question whether or not an order imposing a condition touches the aspect regarding the jurisdiction of the Court. "reading these observations, it is clear that some indication on the part of the learned Chamber Judge is necessary to show that the order of conditional or unconditional leave is passed after having applied the mind. There should be some indication to the effect whether the defence raised in the application for leave to defend is bona fide, or not bogus on sham and unless that is there, it is not possible for the Appellate or revisional Court to appreciate the case. There should be some indication to the effect whether the defence raised in the application for leave to defend is bona fide, or not bogus on sham and unless that is there, it is not possible for the Appellate or revisional Court to appreciate the case. In this view of the matter, relying on the observations of the Division Bench in New Ashapuri societys case (supra) wherein the judgment of the earlier Division Bench in Vijaykumars case (supra) was also referred and especially when the learned Chamber Judge in the impugned order has not indicated anything as to why the conditional leave to defend is granted, all these Revision applications are required to be remanded to the learned Chamber Judge for passing an appropriate order giving reasons after hearing the parties. It is clarified that the learned Chamber Judge will pass the order on the material already produced before him and it will not be open for either of the parties to produce any further material. The learned chamber Judge will pass an appropriate order latest before 22-4-1994. The learned Chamber Judge may fix the date of hearing before the said date and the parties have assured that they will co-operate in the hearing and will not seek any adjournment on the date of hearing fixed by the learned Chamber Judge. ( 5 ) ). In the result, all these Revision Applications are allowed. The impugned orders dated 4-3-1993 passed by the learned Chamber Judge, city Civil Court, Ahmedabad, is hereby set aside. The matters are remanded to the learned Chamber Judge for taking fresh decision in the light of the observations made hereinabove. Rule is made absolute with no orders as to costs. Office is directed to send the writ forthwith. .