The judgment emphasizes the importance of substantial justice over technical considerations and highlights the need to consider the circumstances and record of the case before concluding on a party's lack of interest in pursuing legal proceedings.

ORDER ;

(Ashutosh Shastri, J.)

1. By way of this application under Article 227 of the Constitution of India, the petitioner-original plaintiff has challenged the legality and validity of the order passed by the learned Commercial Court, City Civil Court at Ahmedabad dated 22nd December, 2022 in Commercial Civil Suit No.625 of 2020 and asked for consequential relief. The reliefs, as sought for in the present petition, are as under;

“(a) This Hon’ble Court be pleased to set aside the Order dated 22.12.2022 passed by the Ld. Commercial Court, City Civil Court at Ahmedabad in Commercial Civil Suit No.625 of 2020 and direct the Ld. Commercial Court, City Civil Court at Ahmedabad to take the affidavit in lieu of examination in chief with original documents on behalf of the Petitioner on record;

(b) Pending admission and final hearing of the present Petition, this Hon’ble Court be pleased to stay the proceedings of Commercial Civil Suit No.625 of 2020 pending before the Ld. Commercial Court, City Civil Court at Ahmedabad;

(c) Ex parte ad interim and/or interim relief in terms of prayer 5(b) be granted; and

(d) Such other and further orders as may be considered fit and expedient in the facts of the case be passed.”

2. The background of the facts which has given rise to the present petition is that the petitioner-original plaintiff is a company registered under the provisions of the Companies Act, 1956 and is engaged in the business of manufacturing and selling the products which include the washing powder, detergent cake, bath soap etc., whereas the respondent No.1-original defendant No.1 is a partnership firm and respondent Nos.2 to 5 are the original defendant Nos.2 to 5 who are the partners of the respondent No.1-firm. It is the case of the petitioner that respondent No.1 was used to purchase the goods manufactured by the petitioner and the accounting of transaction was done with the mutual current account for the period commencing from 2nd April, 2004 to 24th November, 2004. In response to the business transaction, the petitioner supplied goods worth Rs.1,92,83,016/- to respondent No.1 and the payment with respect to this remained outstanding and the interest was accumulating, and as such, the respondent No.1, later on, requested the petitioner to shift the outstanding amount from current account to loan account to reduce the rate of interest and approximately, the respondent No.1 paid an amount of Rs.35,00,000/- towards its outstanding amount, but even after adjustment of the said amount, the total amount of Rs.1,56,94,025/- remained due and payable. Time and again, the petitioner reminded to clear the aforesaid outstanding dues and by giving assurances, the respondent No.1 continued to purchase the goods from the petitioner under the mutual current account, but then the respondent failed to discharge his duty to make the repayment, as a result of this, the petitioner was constrained to re-transfer the outstanding dues of the respondent No.1 from loan account to current account. Resultantly, the amount due and payable remained as Rs.3,56,39,450/-.

3. It is the case of the petitioner that the respondent, against its outstanding amount as stated of Rs.1,96,33,790/- for the period commencing from 3rd April, 2004 to 14th December, 2004 issued various credit notes between 2nd April, 2004 to 19th November, 2004 totaling around Rs.3,55,226/- and with a view to discharge its dues, the respondent No.1 issued two cheques being Cheque No.304956 for the amount of Rs.78,31,080/- dated 24th November, 2004 and another cheque bearing No.304957 for the amount of Rs.78,31,080/- dated 1st December, 2004, and the said cheques when deposited for encashment, were dishonoured with an endorsement of “Refer to Drawer”.

4. It is the say of the petitioner that on account of such return of cheques, a legal notice dated 21st December, 2004 under Section 138 of the Negotiable Instruments Act, 1881 was issued by the petitioner, however, despite the aforesaid no