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2014 DIGILAW 1093 (RAJ)

Sarthak Sethi v. Manish Patni

2014-05-06

R.S.CHAUHAN

body2014
JUDGMENT : R.S. Chauhan, J. The petitioner-defendant is aggrieved by the order dated 16.12.2013 passed by Addl. District and Sessions Judge No.5, Jaipur Metropolitan. Jaipur, whereby while granting the leave to the petitioner-defendant for submitting his written statement under Order 37, Rule 3(5) CPC, the learned Judge has imposed the condition that the petitioner-defendant shall give a bank guarantee of Rs.15 lac within a period of one month. 2. Relying on the case of Mechelec Engineers & Manufacturers v. Basic Equipment Corporation [AIR 1997 SC 577], the learned counsel for the petitioner, Mr. Giriraj Bardhar, has contended that in the said case the Hon'ble Supreme Court had relied on the case of Smt. Kiranmoyee Dassi and Another v. Dr. J. Chatterjee, wherein the Hon'ble Supreme Court had laid down the principles applicable to cases under Order 17 CPC. It was clearly held by the Hon'ble Supreme Court that only when the trial court comes to the conclusion that the defence proposed by the defendant is either illusory, or sham, or practically a moonshine, only then the Court would be justified in imposing a condition upon the defendant for permitting him to file his written statement. Secondly, since the petitioner-defendant has raised certain defences which are strong, there are triable issues to be considered and adjudicated by the learned trial court. Therefore, the learned Judge is unjustified in imposing the condition mentioned above. For, if there are, indeed, triable issues, the defence cannot be said to be a sham or illusory. Thirdly, the petitioner-defendant has clearly claimed that the cheques which were allegedly given by him to the respondent-plaintiff. were stolen and with regard to which he had already filed an F.I.R. Moreover, he had also claimed that the respondent-plaintiff is not in a financial position to grant a loan of Rs.45 lac to the petitioner and to his family members, as he himself is an unemployed youth. Therefore, the possibility that loan amount would have been advanced by him and the possibility that the respondent-plaintiff is coming out with a fake case, cannot be ruled out. Hence, according to the learned counsel, since there are triable issues, the learned Judge is not justified in imposing any condition upon the petitioner. 3. On the other hand Mr. Therefore, the possibility that loan amount would have been advanced by him and the possibility that the respondent-plaintiff is coming out with a fake case, cannot be ruled out. Hence, according to the learned counsel, since there are triable issues, the learned Judge is not justified in imposing any condition upon the petitioner. 3. On the other hand Mr. Alok Garg, the learned counsel for the respondent-plaintiff, has claimed that there was an agreement entered between the plaintiff and the petitioner-defendant, wherein a particular cheque for an amount of Rs.15 lac was mentioned. The existence of that agreement clearly proves that a loan amount was given by the respondent-plaintiff to the petitioner-defendant. Therefore, the defence being pleaded by the petitioner tantamounts to a sham. Hence, the learned Judge was justified in imposing the condition mentioned above. 4. In rejoinder, the learned counsel for the petitioner has pleaded that in the plaint the respondent-plaintiff has not pleaded that the parties had entered into an agreement. Moreover, even if the agreement does exists, there are ample issues to be decided by the learned trial court. Thus, the imposition of condition of Rs.15 lac is an unreasonable one. 5. Heard the learned counsel for the parties and perused the impugned order as well as the other documents submitted along with the petition, and considered the case law cited at the Bar. 6. The case of Machelec Engineers & Manufacturers (supra) dealt with a suit for recovery under Order 37 CPC. In this case the Hon'ble Supreme Court has referred to the principles enunciated in the case of Smt. Kiranmoyee Dassi and Another (supra),which are as under: - "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitles to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews (sic) such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend. (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, thereby show mercy to the Defendant by enabling him to try to prove a defence." 7. In the case of Smt. Renuka Parihar and Another v. The Bank of Baroda and Others [1988 WLN (UC) 27], this Court had defined the term triable issue" as meaning where the defendant would be able to resist the suit successfully if he proves the case. If the answer to this question is in the affirmative, then the plea does involve a "triable issue". A combined reading of both the case law mentioned above, leads to the inference that in case there is a triable issue, i.e. if the defence is plausible enough and if the defendant is able to resist the suit successfully, then no condition should be imposed upon the defendant while granting him leave to file his written statement. A combined reading of both the case law mentioned above, leads to the inference that in case there is a triable issue, i.e. if the defence is plausible enough and if the defendant is able to resist the suit successfully, then no condition should be imposed upon the defendant while granting him leave to file his written statement. 8. In the present case, the petitioner has come up with the defence that the cheques were stolen and an F.I.R. was lodged. He has also come up with the defence that before the respondent-plaintiff can be believed that he was in a position to lend Rs.45 lac, one would have to consider his economic condition. Of course, the agreement mentioned by Mr. Garg and produced before this Court does point to the possibility that the plaintiff may be correct in his assertion, but no opinion can be expressed at this juncture with regard to the said agreement. For, the genuineness of the agreement and the legality of the contents of the agreement have yet to be decided and adjudicated upon by the learned Judge. Therefore, notwithstanding the existence of the alleged agreement, the petitioner is coming with defence which would raise triable issues. 9. Thus, clearly the present case is not covered by the circumstance "(e)" as enumerated in the case of Mechelec Engineers & Manufacturers (supra). Hence, the learned Judge was not justified in imposing a condition upon the petitioner. 10. Moreover, in the impugned order the learned Judge does not give any reasons for concluding that the defence is either a sham, or illusory, or is merely a moonshine. Before the learned Judge could have imposed such a condition, he is legally bound to give reasons for imposition of such a condition. 11. For the reasons stated above this petition is hereby partly allowed to the extent that the condition contained in order dated 16.12.2013, is hereby set aside. The rest of the order is hereby confirmed. Consequently, the stay application, too, stands disposed off.