Learned counsel for the petitioner submits that even if it is presumed that the petitioner has admitted else where that sum of Rs. 2,30,000/- is due that does not imply that learned trial Judge could ask the petitioner to deposit a sum of Rs. 2,50,000/- as a condition for granting leave to defend. He submits that question as to when defendant could be ordered to deposit amount in the Court has been considered by the Hon'ble Supreme Court in Sunil Enterprises And Another Vs. SBI Commercial & International Bank Ltd. Reported in (1998)5 Supreme Court Cases 354 and the law on the point has been summarized by the Supreme Court in para 4 of its judgment in the following words:
"The propositions laid down in these decisions may be summed up as follows:
[a] If the defendant satisfies the court that he has a good defence to the claim on merits, 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 possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at the time of granting leave to defend - the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.
[d] If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, 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, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into court or otherwise secured."
He submitted that after having held that the defendant has raised a triable issue and there is fair dispute to be tried, it was not open to the learned Judge to impose condition of depositing sum of Rs.
2,50,000/-. He submitted that Clause [b] of the aforesaid observation by the Supreme Court would show that if the defendant raises a triable issue indicating that he has fair, bona fide or reasonable defence, although not a possibly good defendant, the defendant is entitled to unconditional leave to defend.
6] Learned counsel for the respondent submitted that this judgment has been considered by the Apex Court subsequently in SIFY Ltd. Vs. First Flight Couriers Ltd. 2008(4) Maharashtra Law Journal 620. He submitted that the order passed by the learned trial Judge granting leave to defend is a discretionary order and therefore ordinarily higher forum should not interfere in exercise of said discretion. He submitted that in the face of observations of the Court that some of Rs. 2,30,000/- was due from the petitioner there is absolutely no warrant for interfering in the exercise of the discretion by the trial Court to direct the petitioner to deposit sum of Rs. 2,50,000/-.
7] I have carefully considered both the submissions. There can be no doubt that writ court need not interfer in an order passed by the trial Judge in exercise of its discretion. However, if the discretion is shown to have been exercised disregarding law laid down by the Supreme Court and would result in virtually shutting out the defence it would be necessary to interfere, and therefore, since learned trial judge could not have imposed a condition asking the petitioner to deposit a sum of Rs. 2,50,000/- in the light of the observations by the Supreme Court quoted above, the order cannot be sustained.
Bombay High Court
Smita w/o Yashwant Lipte vs Suryakant Sadashiv Arade
on 9 March, 2010
Bench: R. C. Chavan
2] This petition is directed against order passed by learned
Civil Judge, Senior Division, Chandrapur below Exh. 16 in Summary Suit No. 9 of 2009 before him whereby he granted to the petitioner leave to defend under Order 37 Rule 3 of Civil Procedure Code, and imposed a condition that the petitioner shall deposit a sum of Rs.
2,50,000/- in the Court within 15 days of the order. Learned counsel for the petitioner points out that since this amount was not deposited defence has been struck of.
3] The learned trial Judge while granting leave to defend observed in para 8 of his order as under:
"Thus, there is chequered history of litigation between the parties to the suit. Secondly, in the aforesaid counter complaint and counter civil suit, the present defendant has admitted receipt of part of amount claimed by the plaintiff. In those suits, she admitted of obtaining hand loan of Rs. 4 lacs from the present plaintiff and further admitted that Rs. 2,30,000/- is outstanding due against that amount. It is further prima facie proved that there was some money transaction between the plaintiff and defendant. The defendant failed to show that the suit prima facie false and vexatious, as alleged. The defendant on page 2 of this application admitted that those cheques were blank signed cheques kept in the custody of her husband. Therefore, it is for her husband to prove how and in what circumstances, they came in custody of plaintiff. As per provisions of Negotiable Instruments Act, giving any blank or incomplete signed negotiable instrument will amount to giving right/authority to the payee or holder in due course, to complete those blanks. In light of these facts I hold that the defendant has raised triable issue in this application. There is a fair dispute to be tried as to the circumstances in which those documents came in custody of the defendant, on which suit claim is based."
4] Learned counsel for the respondent/plaintiff submits that since the petitioner had admitted that sum of Rs. 2,30,000/- is outstanding and due learned trial Judge was justified in directing the petitioner to deposit a sum of Rs. 2,50,000/- as a condition to defend the suit.
5] Learned counsel for the petitioner submits that even if it is presumed that the petitioner has admitted else where that sum of Rs. 2,30,000/- is due that does not imply that learned trial Judge could ask the petitioner to deposit a sum of Rs. 2,50,000/- as a condition for granting leave to defend. He submits that question as to when defendant could be ordered to deposit amount in the Court has been considered by the Hon'ble Supreme Court in Sunil Enterprises And Another Vs. SBI Commercial & International Bank Ltd. Reported in (1998)5 Supreme Court Cases 354 and the law on the point has been summarized by the Supreme Court in para 4 of its judgment in the following words:
"The propositions laid down in these decisions may be summed up as follows:
[a] If the defendant satisfies the court that he has a good defence to the claim on merits, 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 possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at the time of granting leave to defend - the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.
[d] If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, 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, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into court or otherwise secured."
He submitted that after having held that the defendant has raised a triable issue and there is fair dispute to be tried, it was not open to the learned Judge to impose condition of depositing sum of Rs.
2,50,000/-. He submitted that Clause [b] of the aforesaid observation by the Supreme Court would show that if the defendant raises a triable issue indicating that he has fair, bona fide or reasonable defence, although not a possibly good defendant, the defendant is entitled to unconditional leave to defend.
6] Learned counsel for the respondent submitted that this judgment has been considered by the Apex Court subsequently in SIFY Ltd. Vs. First Flight Couriers Ltd. 2008(4) Maharashtra Law Journal 620. He submitted that the order passed by the learned trial Judge granting leave to defend is a discretionary order and therefore ordinarily higher forum should not interfere in exercise of said discretion. He submitted that in the face of observations of the Court that some of Rs. 2,30,000/- was due from the petitioner there is absolutely no warrant for interfering in the exercise of the discretion by the trial Court to direct the petitioner to deposit sum of Rs. 2,50,000/-.
7] I have carefully considered both the submissions. There can be no doubt that writ court need not interfer in an order passed by the trial Judge in exercise of its discretion. However, if the discretion is shown to have been exercised disregarding law laid down by the Supreme Court and would result in virtually shutting out the defence it would be necessary to interfere, and therefore, since learned trial judge could not have imposed a condition asking the petitioner to deposit a sum of Rs. 2,50,000/- in the light of the observations by the Supreme Court quoted above, the order cannot be sustained. If the respondent can show to the Court that there is some admission on the part of the petitioner that the sum of Rs.
2,30,000/- is due in the pleadings which have been raised by the parties, the respondent would always be entitled to apply to the Court for passing a partial decree on admission. In view of this the petition is allowed. The impugned orders passed by the learned trial Judge below Exh. 16 and order dated 05.12.2009 passed subsequently as a consequence for failure to comply with the condition to deposit sum of Rs.2,50,000/- are quashed and set aside.
Petitioner shall ensure that he complies with the schedule of the trial as may be fixed by the trial Court and seek no adjournment, and trial Court shall endeavour to dispose of the suit maximum within a period of six months.
JUDGE svk
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