IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 6598 of 2022 ==========================================================

ADYAH BIZOLUTIONS Versus M/S BLA PACKAGING INDUSTRIES PVT. LTD.

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Appearance:

MR JIGAR D DAVE(6528) for the Petitioner(s) No. 1 for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI Date : 06/04/2022

ORAL ORDER

1. Learned advocate Mr. Jigar Dave has replaced learned advocate Rushabh R. Shah for the petitioner.

2. Registry to do the needful.

3. Heard learned advocate Mr. Jigar Dave for the petitioner.

3.1. Learned counsel for the petitioner has drawn the attention of this Court that the present petitioner, who is original defendant in the capacity of middleman but the learned Trial Court has turned down the defence of the defendant, learned Counsel has also placed reliance upon the judgment of the Hon’ble Supreme Court rendered in the case of B L KASHYAP AND SONS LTD v. M/S JMS STEELS AND POWER CORPORATION & ANR reported in 2022 LawSuit (SC) 42, wherein it was observed that the Appellant - defendant No.2 ought to have been granted the leave to defend the claim made in the suit concerning its liability -

Impugned decree is set aside and Appeal is allowed .

3.2. Learned counsel for the petitioner has also drawn the attention of this Court that at page 25 para 5 of the written statement and also drawn the attention of this Court that some observations made in the order dated 02.02.2022 passed by the 4th Additional Senior Civil Judge at Ahmedabad (Rural) Mirzapur.

4. Considering the averments made in the petition and contentions raised by the learned Counsel for the petitioner and also perusing the order dated 02.02.2022 passed by the learned 4th Additional Senior Civil Judge and also perusing the decision of the Hon’ble Supreme Court placed by the learned advocate for the petitioner rendered in the case of B L KASHYAP (supra), this Court is of the opinion that ex facie, that the judgment, which has been placed reliance upon by the learned Counsel for the petitioner that after adjudication, wherein, at this juncture, petitioner is not at the door of this Court for ventilating the grievance upon the premises that the learned Trial Court has wrongly passed the liability to deposit 25% amount of Rs. 42,11,072/- in the Court as a security within two months from the date of this order.

In the opinion of this Court, it is the security of 25% within two months. Further, the learned Trial Court has also observed that at relevant part that as such, there is no defence set up in illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. Learned Trial Court has also discussed the judgment against which the learned Counsel for the petitioner has placed reliance upon the judgment in the case of B L KASHYAP (supra) and also placed reliance upon the decision rendered in the case of SUDIN DILIP TALAULIKAR v. POLY CAP WIRES PRIVATE LIMITED AND OTHERS reported in (2019) 7 Supreme Court Cases 577, that in the facts of the case, grant of unconditional leave to defend was warranted and so granted, this Court is of the opinion that plaintiff is the dominus litis. Further, defendant has every defence before the learned Trial Court for rebuttal of evidence when is alleged with the so called liability of about Rs. 42,11,072/- as mentioned in the conditional order and therefore, at this juncture, learned Counsel has also submitted that petitioner is a lady.

5. Considering the aforesaid discussion, issue Notice for final disposal, returnable on 28.04.2022.

Direct service is permitted.

(A. C. JOSHI,J)

KUMAR ALOK / 2