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2023 DIGILAW 1663 (ALL)

Sharda Singh v. Vijay Kumar Rastogi

2023-07-12

SARAL SRIVASTAVA

body2023
JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard learned counsel for the revisionist. 2. The revisionist, who is plaintiff in Original Suit No. 37 of 2020 under Order 37 C.P.C. has assailed the order dated 03.03.2023 passed by Civil Judge (Senior Division), Varanasi granting unconditional leave to the respondent to contest the suit instituted by the revisionist. 3. The suit has been instituted on the ground that the revisionist has lent an amount of Rs. 69,75,000/- through various cheques and other modes to the respondent, but the respondent has returned only Rs. 1,20,000/-. 4. In the suit, notices were issued. On appearance of respondent in the suit, the revisionist as per procedure contemplated under Order 37 Rule 4 of C.P.C. served the respondent a summon for judgment in form No. 4-A in appendix B supported by the affidavit stating the details in the paragraph 4 of the affidavit regarding various payments totalling Rs. 1,20,000/- paid by the respondent through various cheques. The respondent further in Para 5 of the affidavit filed in support of summons of judgment have disclosed the details of cheque given by the respondent which was dishonoured by the bank due to insufficiency of fund. In Para 6 of the affidavit, the revisionist has disclosed two cheques received from respondent amounting to Rs. 1,20,000/- which were encashed. It is further stated that the respondent became dishonest and does not intend to pay the money given by the revisionist, and since the respondent has no defence to suit, therefore, respondent is not entitled to any opportunity as provided under Order 37 Rule 3 (5) of C.P.C. to defend the suit. 5. The respondent filed reply to the aforesaid affidavit denying the fact that they have taken any loan from the revisionist. It is further stated that the husband of the revisionist is Sub Inspector and the suit has been instituted with the collusion of her husband. It is further stated that the respondent has given an amount of Rs. 31,80,000/- through various cheques details whereof has been stated in paragraph 11 of the reply of the respondent and to avoid the payment of such amount, the suit has been instituted by the revisionist. Accordingly, it is prayed that the respondent be granted unconditional leave to contest the suit. 6. 31,80,000/- through various cheques details whereof has been stated in paragraph 11 of the reply of the respondent and to avoid the payment of such amount, the suit has been instituted by the revisionist. Accordingly, it is prayed that the respondent be granted unconditional leave to contest the suit. 6. Challenging the order, learned counsel for the revisionist has contended that the subordinate court has committed material irregularity and failed to exercise jurisdiction vested in it in rejecting the application. It is submitted that perusal of the reply of the respondent against the affidavit filed by the revisionist in support of summon reveals that the defence set up by the respondent is malicious and the respondent has no plausible defence to contest the suit. Thus, it is submitted that the subordinate court has erred in law in granting unconditional leave to the respondent to contest the suit. It is submitted that perusal of objection reveals that no bona fide or real triable issue is raised in the objection and in such condition, the trial court while granting leave ought to have imposed some strict condition in granting the leave. 7. I have considered the contentions of learned counsel for the revisionist and perused the record. 8. The facts as emanate from the record are that the suit has been instituted by the revisionist under Order 37 of C.P.C. for recovery of an amount of Rs. 68,55,000/- along with interest on the ground that the revisionist has given a loan of Rs. 68,55,000/- through various cheques out of which respondent has paid only Rs. 1,20,000/-. The further ground in the suit is that two cheques given by the respondent were dishonoured due to insufficiency of fund. 9. The subordinate court issued notice to the defendant. On appearance of the defendant, the revisionist filed summons along with affidavit in the Form 4-A of Appendix B again reiterating that the revisionist has paid Rs. 68,55,000/- through various cheques the details whereof has been stated in paragraph 4 of the affidavit. The details with regard to the cheques issued by the respondents which were bounced have been stated in the paragraph 5 by the revisionist in the affidavit. 10. The respondent has denied the factum of taking any loan from respondent and has further set up a defence that they have paid amount of Rs. 31,80,000/- for the purchase of property of revisionist. 10. The respondent has denied the factum of taking any loan from respondent and has further set up a defence that they have paid amount of Rs. 31,80,000/- for the purchase of property of revisionist. The respondent has further denied the issuance of any cheques which were dishonoured by the bank. 11. In the aforesaid backdrop, the trial court after considering the law laid down by the Apex Court held that the respondent has raised a triable issue and is entitled to unconditional leave to defence. 12. Learned counsel for the revisionist has placed reliance upon the judgment of Apex Court in the case of B.L. Kashyap and Sons Limited vs. JMS Steels and Power Corporation and Another, 2022 (3) SCC 294 . In the context of the present case paragraph 33.1 to 33.3 are relevant and they are reproduced herein-below: “33.1. As noticed, if the defendant satisfies the Court that he has substantial defence, i.e. a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bona fide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the trial court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the trial court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, where the proposed defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest. 33.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave and even in the case of a triable issue on a fair and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. 33.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave and even in the case of a triable issue on a fair and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave. It is only in the case where the defendant is found to be having no substantial defence and/or raising no genuine triable issues coupled with the Court's view that the defence is frivolous or vexatious that the leave to defend is to be refused and the plaintiff is entitled to judgment forthwith. Of course, in the case where any part of the amount claimed by the plaintiff is admitted by the defendant, leave to defend is not to be granted unless the amount so admitted is deposited by the defendant in the Court. 33.3. Therefore, while dealing with an application seeking leave to defend, it would not be a correct approach to proceed as if denying the leave is the rule or that the leave to defend is to be granted only in exceptional cases or only in cases where the defence would appear to be a meritorious one. Even in the case of raising of triable issues, with the defendant indicating his having a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny the leave. It gets perforce reiterated that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions as stated above could be imposed while granting leave but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious.” 13. Reading of aforesaid paragraphs reveals that the Apex Court has held that ordinarily the defendant should not be denied opportunity to contest the case unless it is demonstrated that no substantial defence is raised or defence set up does not raise genuine triable issues coupled with the fact that the defence is frivolous or vexatious, the Court may refuse the leave to defend and the plaintiff is entitled to judgment forthwith. 14. Further, the Apex Court in paragraph 33.1 has delineated four eventualities of cases which may arise in such type of cases and has provided guidelines which the Court should follow. The Apex Court has provided that the trial court should impose condition in granting leave to the defendant in cases which fall in the fourth eventuality. 15. In the instant case, it is submitted by learned counsel for the revisionist that the present case falls in the fourth eventuality as categorised by the Apex Court in paragraph No. 33.1 of the judgment which is “In the fourth eventuality, where the proposed defence appears to be plausible but improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.” 16. This Court analysed the facts of the case in the light of fourth eventuality delineated by the Apex Court in paragraph 33.1 of the judgment and finds that respondent has set up a substantive issue for grant of unconditional leave to contest the suit and the case of respondent does not fall in the category of fourth eventuality. It is further relevant to note that the averments have been made on affidavit by the revisionist without placing any material on record indicating that the payments detailed in paragraph 4 of the affidavit have been made by the revisionist to the respondent. 17. Though it is true that the respondent has also averred in his objection with regard to payment made by him for purchase of land without placing any material on record, but this Court may note that the revisionist has made assertion of payment on affidavit without placing any material on record to establish bona fide of payment by him which has been denied by the respondent in his objection. Both the parties have failed to produce any material on record in support of their claim. 18. In such view of the fact, this Court finds that the defence set up by the respondent in his objection is triable issue which entitles the defendant to unconstitutional leave to contest the suit as contemplated under Order 37 Rule 5 of C.P.C. 19. It would also be appropriate at this stage to consider the first proviso to Order 37 Rule 3(5) of C.P.C. which mandates the Court not to refuse the leave to defend unless it is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that defence intended to be put up by the defendant is frivolous and fictitious. In the instant case, the revisionist has failed to demonstrate that the facts disclosed by the respondent in his objection do not disclose that he has substantial defence to raise. In such view of the fact, this Court finds that the subordinate Court has not committed any illegality or jurisdictional error in granting unconditional leave to the respondent. 20. In such view of the fact, the revision is dismissed without any order as to costs.