LexWADA ARUN ASBESTOS (P) LTD. versus GUJARAT WATER SUPPLY & SEWERAGE BOARD
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[2008] 17 S.C.R. 686 A WADA ARUN ASBESTOS (P) LTD. v. GUJARAT WATER SUPPLY & SEWERAGE BOARD (Civil Appeal No. 7314 of 2008) B DECEMBER 16, 2008 [S.S. SINHA AND CYRIAC JOSEPH, JJ.] \ Code of Civil Procedure, 1908 - Order 37 - Summary J suit - Conditional leave to defend granted - Conditions not -.,... c complied with - Decree - On appeal, High Court directed defendant to deposit a sum - Duly complied - High Court allowed appeal and remitted matter to the trial court with direction that amount deposited by defendant should deemed " ,, to be deposited under leave granted by trial court - Interference with - Held: Not called for. D Appellant supplied certain goods to the respondent. The respondent did not release the outstanding payment. .. Appellant filed summary suit. Respondent filed an .,_ application for grant of leave to defend the suit. By order E dated 27.11.2002, a conditional leave was granted, whereby respondent was directed to give security of 50% amount of said claim. The said amount was not deposited ' and as such the condition was not complied with. A decree was passed in terms whereof respondent was directed to pay Rs. 21 lakhs alongwith interest @ 23% per F annum. Appeal was filed thereagainst. By an order dated 3.3.2004, High Court directed that the cheque for the "* ~ amount of Rs.15.50 lacs deposited by respondent may be encashed by the Court of Civil Judge but amount should not be permitted to be withdrawn by decree holders till G further orders, and that there shall also be further ad interim stay of further execution proceedings. The said order was complied with. High Court allowed the appeal and remitted the matter to trial Court with the directions >- that the amount already deposited by respondent would be deemed to be the amount deposited under the leave ;-. H . 600 WADA ARUN ASBESTOS (P) LTD. v. GUJARAT WATER 687 ", SUPPLY & SEWERAGE BOARD granted by trial Court. Hence the present appeal. A -1. Dismissing the appeal, the Court • HELD:1. Indisputably, an appeal was preferred against the decree and not against the order dated 3.3.2004 granting conditional l~ave in favour of the 8 respondent and the said condition was not complied with. [Para 9] (692-E] ' 2. Where a conditional leave is granted and the \ conditions therefor are not complied with, a judgment in favour of the plaintiff can be passed. It is not in dispute that the first appeal was maintainable. Where a decree is c appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal as envisaged under s.105 CPC. [Para 12] (693-E-F] "' 3. An order imposing a conditional leave to defend D the suit was a jurisdictional question and, thus, a revision ,, application would be maintainable. But if a right of appeal from the decree is conc:eded to a defendant, he cannot be denied a right to challenge an order which was subject to revision in his memorandum of appeal filed E from the decree ultimately passed. (Paras 13 and 14] [693- G-H; 694-8] The New Ashapuri Co-operative Housing Society Ltd. and Anr. v. Arvindkumar Manila/ Patel AIR (1975) Gujarat 76; Fateh Lal v. Sunder Lal AIR (1980) Rajasthan 220; Modi F Ram and Anr. v. Smt. Sugan Bai AIR (2005) Rajasthan 12 - .... and A.K. Ve/an v. Mis. Namyanan and Co. (P) Ltd. AIR (1972) Madras 118, affirmed. Santosh Kumar v. Bhai Moo/ Singh (1958) SCR 1211; Mis. MechalecEngineers and Manufacturers v. Mis. Basic G Equipement Corporation AIR (1977) SC 577; Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee (1945) 49 CWN 249 -.<.. and Raj Duggal v. Ramesh Kumar Bansal (1991) Supp. 1 sec 191, relied on. 4. A statutory right conferred on a litigant cannot H i 688 SUPREME COURT REPORTS [2008] 17 S.C.R. e "' A ordinarily be taken away. A civil revision application might have been maintainable as against the order dated 27 .11.2002 granting conditional leave. The said remedy -'r- ) was also available where leave to defend a suit is refused. .. Leave to defend a suit, should ordinarily be granted. It B was, therefore, permissible for the defendant to raise the said contention in the appeal although it had asked for time to comply with the conditions. [Para 18] [696-H; 697- A-8] j- 5. Keeping in view the rate of interest prayed for by f 'f I c the appellant in terms of the provisions of the Interest
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