Point of Law - Court has considered the issue and confirmed the order passed by the learned trial court granting the application for leave to defend conditionally. All the rights and contentions of the parties on question of law and facts were kept open to be adjudicated upon at the time of the suit.

JUDGMENT :

Rule returnable forthwith. Mr. Keyur Vyas, learned advocate has waived service of notice of rule for the respondent.

2. By way of present petition, the petitioner – original defendant has prayed for appropriate writ, order or direction quashing and setting aside the impugned order dated 18.12.2018 below application for leave to defend at Exh.11 passed in Summary Civil Suit No.14 of 2014 by learned Additional Senior Civil Court, Kalol.

3. The short facts leading to file present petition are under:

3.1 The Summary Civil Suit No.14 of 2014 was filed by the respondent – original plaintiff against the present petitioner – original defendant under Order 37 Rule 1-3 of the Code of Civil Procedure for recovery of the amount of Rs.12,65,217.64. In the said suit, the respondent – original plaintiff has taken out summons for judgment at Exh.9 and prayed to sign the judgment. In the application at Exh.9, it was contended that he is the owner of M/s. Umiya Steel Industries and that the parties to the suit have business relationship since last more than 3 years. It was contended that he is doing coating of the articles and for the said purpose, he was raising regular bills to the petitioner – original defendant. It was contended that from 1.7.2013 to 31.12.2013, he had raised powder coating bills for an amount to the sum of Rs.11,65,217.94 which was duly received by the petitioner – original defendant. It was contended that the defendant was regularly making the payment, however, despite demand followed by legal notice, the said amount has not been paid and vague reply was given to his legal notice and therefore, he was entitled for recovery of an amount of Rs.11,65,217.64 alongwith interest of Rs.1,00,000 and total amount of Rs.12,65,217.94.

3.2 On service of process of suit, the defendant has filed application seeking leave to defend at Exh.11 and has requested to permit him to contest the said suit unconditionally. In the application for leave to defend, the defendant raised several triable issues inter-alia contending that whether there is any business relation between plaintiff and defendant or not; whether there is privity of contract between the plaintiff and defendant or not and whether the plaintiff is entitled to recover alleged suit amount and interest.

3.3 The learned Additional Senior Civil Judge, Kalol by his order dated 18.12.2018 was pleased to permit the defendant to defend the said suit after observing that there are triable issues involved in the suit, however, imposed condition to deposit 20% of the suit amount within 7 days. Thereafter, time was extended for further period of 30 days below application Exh.52 on 18.12.2018.

3.4 Aggrieved and dissatisfied with the impugned order below application at Exh.11, the petitioner - original defendant has approached this Court by way of present petition under Articles 226 and 227 of the Constitution of India.

4. Heard learned advocate Mr. N.V.Gandhi for the petitioner and learned advocate Mr. Keyur Vyas for the respondent.

5. Mr. Gandhi, learned advocate appearing for the petitioner has submitted that when consistent view is taken by the Hon’ble Apex Court in relation to summary trials under Order 37 of the Civil Procedure Code is that when a Court is satisfied that a triable issue has been raised in defence of the claim made on behalf of the plaintiff, unconditional leave has to be granted to the defendant to contest the suit and no direction could be given while granting such leave to the defendant to deposit any amount by way of security. It is further urged by learned advocate for the petitioner that sub-rule (5) of Rule-3 of Order 37 is important to this case in the sense that it recognizes a dichotomy between a disputed claim and admitted claim in a suit filed under Order 37 of the Code. It is further submitted that as far as the disputed claim is concerned, once the Court comes to a conclusion that there is a triable issue, unconditional leave has to be given to the defen