Ashokkumar Sureshkumar Mehta v. Nikhil Mahendra Kothari & Ors.

Mr. J.B. Kocheta, counsel for Petitioner Mr. R.D. Dave i/b M/s. N.N. Vaishanav & Co. counsel for Respondent No.1. ..... CORAM: CORAM: B. H. MARLAPALLE, J. B. H. MARLAPALLE, J. CORAM: B. H. MARLAPALLE, J. DATED: 15TH MARCH, 2005 DATED: 15TH MARCH, 2005 DATED: 15TH MARCH, 2005 P. C.:- P. C.:- P. C.:-

Heard Mr. Kocheta the learned counsel for the petitioner and Mr. Dave h/f M/s. N.N. Vaishnav and Co. for the respondent No.1.

The respondent No.1 instituted a Special Summary Suit No.3 of 2002 under Order XXXVII of C.P.C. before the learned Civil Judge, Senior Division at Malegaon and the present petitioner was impleaded as defendant No.3 whereas the respondent Nos. 2 and 3 were impleaded as defendant Nos. 1 and 2. The suit was for the recovery of the amount of Rs.1,77,705/-. The present petitioner filed an application under Order XXXVII Rule 3(5) of C.P.C. praying for leave (-2-) to defend unconditionally and this application was filed before filing the written statement and it was supported by a cryptic affidavit. The application was opposed by the plaintiff by filing a detailed say at Exh.55. By the impugned order dt. 1.8.2003 the learned Civil Judge, Senior Division at Malegaon was pleased to permit the defendant No.3 to defend the suit subject to furnishing the Bank Guarantee to the extent of the claim, within one month.

Mr. Kocheta, the learned counsel for the petitioner submitted that the reliance of the trial court on the decision of this Court in the case of Indian Reyon and Industries Ltd. Vs. M/s. Sirohya Enterprises (AIR 1992 Bom. 60) is not the correct position in law in view of the subsequent decision of the Supreme Court in the case of Sunil Enterprises and Anr. Vs. SBI COmmercial & International Bank Ltd. [(1998) 5 SCC 354]. The trial Court in para 5 of the impugned order though noted that there was a triable issue, prima facie, documents went to show that the present petitioner had forwarded payments to the plaintiff through purchasers i.e. defendant Nos. 1 and 2 and even the despatches were routed through the present petitioner. The trial court therefore, held that the defence of the petitioner was not of substantial nature. The learned counsel for the petitioner also referred to the decision in the case (-3-) Santosh Kumar Vs. Bhai Mool Singh (AIR 1958 SC of Santosh Kumar Vs. Bhai Mool Singh (AIR 1958 SC Santosh Kumar Vs. Bhai Mool Singh (AIR 1958 SC 321). In the case of Sunil Enterprises (Supra), the 321). 321). law laid down in the case of Santosh Kumar (supra), Milkhiram (India) Pvt. Ltd. V/s. Chamanlal Bros Milkhiram (India) Pvt. Ltd. V/s. Chamanlal Bros Milkhiram (India) Pvt. Ltd. V/s. Chamanlal Bros