Star Chemicals (Bombay) Ltd. Vs. Kedia Distilleries Ltd. & Ors.
EmailAppeal: Civil Appeal No. 4416 of 2001
(Arising out of S.L.P. (C) No. 11818/1999)
(Arising out of S.L.P. (C) No. 11818/1999)
Petitioner: Star Chemicals (Bombay) Ltd.
Respondent: Kedia Distilleries Ltd. & Ors.
Apeal: Civil Appeal No. 4416 of 2001
(Arising out of S.L.P. (C) No. 11818/1999)
(Arising out of S.L.P. (C) No. 11818/1999)
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Jul 20, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Order 37, rule 3(5) – Leave to defend – No affidavit filed – Unconditional leave to defend – Grant of. Held, to be bad in law. Orders set aside and matter remitted with permission to file affidavit. (Para 2)
JUDGEMENT:
ORDER
1. Leave granted.
2. The appellant herein, filed a summary suit at the High Court of judicature at Bombay for recovery of money along with interest against respondent nos. 1,2,3 and 4 under the provisions of order XXXVII C.P.C. In response to the summons issued by the court, respondent no. 1 filed an affidavit in reply, wherein, it was stated that respondent no. 1 had been declared a sick industrial company by the BIFR and as such the matter cannot be proceeded against them. Respondent no. 2 did not file any affidavit in reply to the summons for judgment. The High Court, in so far as respondent no. 1 was concerned, adjourned the suit sine die until disposal of the proceedings before the BIFR and decreed the suit against respondent nos. 3 and 4 in terms of prayer (a) of the plaint. So far as respondent no. 2 was concerned, an unconditional leave was granted to defend the suit, although no affidavit in reply to the summons for judgment was filed by respondent no. 2. Aggrieved against the order of the High Court granting unconditional leave to respondent no. 2, the appellant has filed this appeal. It is admitted that no affidavit in reply to the summons for judgment was filed by respondent no. 2. We are of the view, that in the absence of any material, the court was not justified in granting unconditional leave to respondent no. 2 to defend the suit. On this short ground alone, the said order is liable to be set aside. We, accordingly, set aside the order under challenge to the extent it relates to respondent no. 2. However, it will be open to respondent no. 2 to file an affidavit in response to the summons for judgment. In case such an affidavit is filed, the High Court shall reconsider as to whether the unconditional leave to defend the suit be granted to respondent no. 2. Learned counsel also urged that respondent no. 1 is no longer a sick unit and, therefore, the court may be directed to proceed against it. We are not deposed to express any opinion in that regard. However, it would be open to the appellant to bring to the notice of the court any subsequent event that has taken place.
3. In view of what is stated above, the appeal is allowed. There shall be no order as to costs.
1. Leave granted.
2. The appellant herein, filed a summary suit at the High Court of judicature at Bombay for recovery of money along with interest against respondent nos. 1,2,3 and 4 under the provisions of order XXXVII C.P.C. In response to the summons issued by the court, respondent no. 1 filed an affidavit in reply, wherein, it was stated that respondent no. 1 had been declared a sick industrial company by the BIFR and as such the matter cannot be proceeded against them. Respondent no. 2 did not file any affidavit in reply to the summons for judgment. The High Court, in so far as respondent no. 1 was concerned, adjourned the suit sine die until disposal of the proceedings before the BIFR and decreed the suit against respondent nos. 3 and 4 in terms of prayer (a) of the plaint. So far as respondent no. 2 was concerned, an unconditional leave was granted to defend the suit, although no affidavit in reply to the summons for judgment was filed by respondent no. 2. Aggrieved against the order of the High Court granting unconditional leave to respondent no. 2, the appellant has filed this appeal. It is admitted that no affidavit in reply to the summons for judgment was filed by respondent no. 2. We are of the view, that in the absence of any material, the court was not justified in granting unconditional leave to respondent no. 2 to defend the suit. On this short ground alone, the said order is liable to be set aside. We, accordingly, set aside the order under challenge to the extent it relates to respondent no. 2. However, it will be open to respondent no. 2 to file an affidavit in response to the summons for judgment. In case such an affidavit is filed, the High Court shall reconsider as to whether the unconditional leave to defend the suit be granted to respondent no. 2. Learned counsel also urged that respondent no. 1 is no longer a sick unit and, therefore, the court may be directed to proceed against it. We are not deposed to express any opinion in that regard. However, it would be open to the appellant to bring to the notice of the court any subsequent event that has taken place.
3. In view of what is stated above, the appeal is allowed. There shall be no order as to costs.
