H.B.ANTANI, J. - (1.)This Revision Application under section 115 of the Civil Procedure Code is directed against the order dated 30.03.2000 passed by Chamber Judge, Court No.16, City Civil Court, Ahmedabad below Summons for Judgment in Summary Civil Suit No. 5689 of 1998 whereby the learned Judge gave unconditional leave to defend the suit.
(2.)Mr. Gandhi, learned advocate for the petitioner at the outset submitted that in view of the amendment to section 115 of the Civil Procedure Code, he may be permitted to convert this Revision into a Special Civil Application. He has submitted that in similar circumstances, this Court permitted conversion of Revision Application into Special Civil Application which have also been finally disposed of by this Court. In support of this contention, he has relied on judgment dated 07.02.2007 passed in SCA No. 23320 of 2005, order dated 13.03.2008 passed in SCA No. 19750 of 2007 and order dated 12.12.2008 passed in SCA No. 18677 of 2007. Mr. Gandhi also relied on the judgment of the Apex Court in the case of Col. Anil Kak (Retd) vs. Municipal Corporation, Indore reported in AIR 2007 SC 1130 : 2005 (O) GLHEL-SC 35760 and two judgments of this Court in the case of Chandravadan Manubhai vs. Nalini Navin Bhagwati reported in 1996 (1) GLH 36 and in the case of Suvidha Builders vs. Dilipsinh Pravinsinh reported in 2004 (O) GL HEL HC 212856.
(3.)On merits Mr. Gandhi submitted that the order passed by the learned Judge is erroneous, illegal and contrary to the facts and law, and, therefore, requires to be quashed and set aside. He submitted that the order was passed after four months and therefore it is practically impossible to remember the true and correct facts and therefore, the order is not a legal order. Learned advocate submitted that Summary Suit No. 5689 of 1998 was filed to recover a sum of Rs.4,46,995-87 on the ground that on 01.04.1997, the total outstanding amount was Rs.2,57,058-70. He further submitted that for the period from 11.06.1997 to 02.09.1997, goods were sold and the total outstanding including the cost of the goods, interest of late payment, other debit notes etc. the total outstanding amount was Rs.33,68,939-70. After adjusting payments received at different times and after giving effect to all the credit notes, the net outstanding amount payable by the respondents to the present petitioners comes to Rs.4,13,924-23. Since the said payment was not forthcoming, a notice was given which was returned with the endorsement, firm closed. Ultimately, Summary Civil Suit No. 5689 of 1998 came to be filed. It is submitted that as per the terms and conditions of the bill, for late payments, interest at 24% is payable. He submitted that summons for judgment was taken out and leave to defend application was filed by the respondents. In the leave to defend application, the respondents came out with a case of settlement and also that the plaintiff has illegally charged interest on late payment. He submitted that the learned Judge has granted unconditional leave on the ground that there are nearly five entries of interest of late payment totaling to Rs.2,02,000/- in the year 1995-96, Rs.55,058-7- in the year 1997-98 and there are also nine such entries totaling to Rs.67,188-00. The learned Judge has also referred to the settlement arrived at between the parties. He submitted that the learned Judge erred in granting conditional leave and the said order deserves to be quashed and set aside and conditional order be passed to defend the suit.