Case Note & Summary
The plaintiff, Mrs. Neelam M. Gurdasani, filed a summary suit against the defendant, Mr. Vimalbhai, for recovery of Rs. 85,500/- with future interest at 24% per annum on Rs. 50,000/-. The plaintiff claimed that she was dealing in supply of dyed polyester and polyester fabrics under the name M/s Mamta Textiles, and the defendant, carrying on business as M/s Vikas Synthetics, placed orders for goods. The plaintiff sold and delivered goods under three bills: Bill No. 163 dated 29-09-1995 for Rs. 37,344/-, Bill No. 165 dated 12-10-1995 for Rs. 1,32,500/-, and Bill No. 166 dated 12-10-1995 for Rs. 1,06,828/-, totaling Rs. 2,76,672/-. The defendant issued three cheques dated 16-11-1995 for Rs. 56,828/-, Rs. 1,32,500/-, and Rs. 37,344/-, which were realized, leaving a balance of Rs. 50,000/- due. Despite a legal notice dated 05-01-1998, the defendant did not pay. The plaintiff filed the suit and took out Summons for Judgment. The defendant filed an affidavit in reply, contending that he was not the proprietor of Vikas Synthetics and that the invoices were not in his name. The court considered whether the defendant had raised triable issues. The court found that the defendant's denial of proprietorship and receipt of goods constituted triable issues, and therefore granted unconditional leave to defend the suit. The court directed the defendant to file his written statement within four weeks and set the suit for hearing.
Headnote
A) Civil Procedure - Summary Suit - Unconditional Leave to Defend - Order 37, Code of Civil Procedure, 1908 - The court considered whether the defendant raised triable issues entitling him to unconditional leave to defend. The defendant denied being the proprietor of Vikas Synthetics and denied receipt of the goods. The court held that the defendant had raised triable issues and granted unconditional leave to defend. (Paras 1-3)
Issue of Consideration
Whether the defendant is entitled to unconditional leave to defend the summary suit under Order 37 of the Code of Civil Procedure, 1908, when the defendant denies being the proprietor of the business and denies receipt of the goods.
Final Decision
The court granted unconditional leave to the defendant to defend the suit. The defendant is directed to file his written statement within four weeks. The suit is set down for hearing.
Law Points
- Summary suit
- unconditional leave to defend
- triable issues
- Order 37 CPC
- recovery of price of goods sold and delivered
