Research › Search › Judgment

Delhi High Court · body

2001 DIGILAW 32 (DEL)

D. KOCHHAR v. CANARA BANK

2001-01-11

DEVENDER GUPTA, MUKUL MUDGAL

body2001
DEVINDER GUPTA ( 1 ) THIS appeal has been preferred by appellant/defendant No. 3 against the order passed on 29. 8. 2000 by learned Single Judge allowing applications (IAs. 8915 and 8917 of 1994 in Suit No. 502 of 1985), which were filed by the defendant/appellant. The appellant is aggrieved by the condition imposed on him of deposit of Rs. 5,00,000. 00within 8 weeks for setting aside the decree against him. ( 2 ) A suit was filed- by the plaintiff/ respondent under Order XXXVII Criminal Procedure Code. The appellant was also impleade. d defendant No. 3. , Summons in the suit were duly served on the defendants including defendant No. 3, who duly put in appearance on 13. 5. 1985. Summons for judgment were directed to be issued. These were stated to have been served on 23. 8. 1985 not on the defendants but upon their counsel. As no application for leave to defend was filed on behalf of defendant No. 3 and the application of defendants 1 and 2 seeking leave to defend was dismissed on 17. 8. 1993, learned Single Judge proceeded to decree the plaintiff s suit against all the defendants. Defendant No 3 by an application all the defendants. Defendant No. 3 by an application prayed for setting aside the decree, inter alia, on the grounds that the plaint disclosed no allegations about existence of any written agreement between the plaintiff and defendant No. 3, therefore, suit under Order XXXVII Criminal Procedure Code. against him was not. maintainable and that the counsel did not inform him about service of summons for judgment on him (counsel) due to which leave to defend could not be sought in time. Version of the defendant/appellant was accepted by learned Single judge that at the time of passing of decree, the Court was not informed by the plaintiff that there was no written agreement between the plaintiff and defendant No. 3, therefore, decree passed against defendant No. 3 without any written agreement or guarantee on record was a mistake of the Court and no person can be penalised or punished for such mistake of the Court. Learned Single Judge also came to the conclusion that summons for judgment were not served upon defendant No. 3 because of which he could not take requisite steps for leave to defend. Learned Single Judge also came to the conclusion that summons for judgment were not served upon defendant No. 3 because of which he could not take requisite steps for leave to defend. Despite these findings, learned Single Judge while allowing the application of defendant No. 3 imposed a condition of deposit of Rs. 5,00,000. 00 for setting aside the decree. ( 3 ) WE have heard learned counsel for the parties. ( 4 ) LEARNED counsel for the respondent raised an objection about maintainability of the appeal on the ground that as the application of the defendant/appellant had been allowed and the impugned order is an interim order, no appeal would lie against the same. He also tried to support the order on merits. ( 5 ) NO doubt there will be no right of appeal in favour of a successful party since the said party cannot be said to be aggrieved by an order allowing his application, but the position in this case is entirely different. Learned Single Judge did allow the applications but simultaneously imposed the condition of deposit of the amount. In other words, non-deposit of the amount would result in denial of the relief, which has been granted to the appellant. On failure of the defendant/appellant to deposit the amount, it will not be permissible for the defendant/appellant to apply for leave to defend. On the parameters, as laid down by the Supreme Court in Shah Babulal khimji Vs. Jayaben D. Kama and another AIR 1981 S. C. 1786, the impugned order imposing condition of deposit of a part of the suit amount undoubtedly would amount to "judgment" since it affects vital and valuable right of the appellant, which if not complied with, would work serious injustice to him in as much as the appellant will be deprived of the benefit of setting aside of the decree and resultantly will not be in a position to seek leave of the Court to contest the suit. In the facts and circumstances of the case, when learned Single Judge had come to Vr\e conclusion that defendant no. 3 was not at fault and the fault was either of the Court or of the plaintiff, there was no question of imposing any condition. The discretion thus exercised is not proper. In the facts and circumstances of the case, when learned Single Judge had come to Vr\e conclusion that defendant no. 3 was not at fault and the fault was either of the Court or of the plaintiff, there was no question of imposing any condition. The discretion thus exercised is not proper. Question of imposing condition would have arisen only at the stage of granting leave in case ultimately the appellant would be held entitled to the same, for which stage had not yet reached. ( 6 ) CONSEQUENTLY, the appeal is allowed. The impugned order of learned Single judge in so far as imposition of the condition of deposit of Rs. 5,00,000. 00 by defendant No. 3/ appellant is set aside. Resultantly, the defendant/appellant s applications will stand allowed and decree against the defendant/appellant shall stand set aside.