Bombay High Court
Yedba Bhagwan Kadam And Another vs Ashok Ankushrao Ghuge on 15 June, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5820 OF 2016
1. Yedba Bhagwan Kadam,
Age-68 years, Occu-Agriculturist
and Labour,
2. Kusum w/o Yedba Kadam,
Age-46 years, Occu-Agriculturist
and Labour,
Both are r/o Sonpethwadi,
Tq. and Dist. Beed -- PETITIONERS
VERSUS
Ashok Ankushrao Ghuge,
Age-41 years, Occu-Agriculturist
and Advocate,
R/o Borfadi, Tq. and Dist.Beed,
At Present R/o Balaghat Colony,
Canal Road, Beed -- RESPONDENT
Mr.V.P.Sawant h/f Mr.A.D.Hande, Advocate for the petitioners.
Mr.S.R.Shirsat, Advocate for respondent No.2.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 15/06/2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. The petitioners are aggrieved by the order dated 12/04/2016
khs/JUNE 2017/5820
passed by the learned Civil Judge, S.D. Beed in Summary Civil Suit
No.7/2015 by which the petitioners have been directed to deposit an
amount of Rs.1,00,000/-.
3. The petitioners contend that the respondent/plaintiff has filed
a summary Civil Suit for seeking recovery of Rs.1,00,000/- on
27/10/2015. The petitioners appeared in the matter on 30/11/2015
and moved an application and application Exh.13 in their capacity of
deemed defendants for seeking leave to file a say and defend the suit.
By the impugned order, the learned Court has directed the
petitioners to deposit the amount of Rs.1,00,000/- which is the entire
purported recovery amount.
4. Mr.Sawant, learned Advocate for the petitioners strenuously
submits that when the amount claimed was Rs.1,00,000/-, the Court
not have directed the defendants to deposit the entire amount
keeping in view the law laid down by the learned Full Bench of this
Court in the matter of Jyotsna K.Valia Vs.T.S.Parekh and Co.
[2007(4) Mh.L.J.517]. Specific reliance has been placed upon
paragraph No.31 in the Jyotsna judgment (supra) wherein this Court
has culled out the tests. Paragraph No.31 reads as under :-
khs/JUNE 2017/5820
"31. By so holding it is not as if the Defendant is denuded of his
defences when he applies for leave to defend. The Supreme Court in
Machalec Engineering and Manufacturers v. Basic Equipment
Corporation has laid down the tests, which thereafter have been
reiterated by the Supreme Court in Sunil Enterprises v. S.B.I.
Commercial and International Bank Ltd. . The tests laid down are as
under:
(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 may be 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 plaintiffs 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 in to Court or
furnishing security.
(d) If the defendant has no defence, or if the defence is sham or
illusory or practically moon-shine, 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 moon-shine, 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."
5. Learned Advocate for the respondent has strenuously defended
khs/JUNE 2017/5820
the impugned order. He submits that considering the law laid down
by the learned Full Bench in Jyotsna judgment (supra), the Trial
Court has considered the law and in its discretion found it fit to
direct the petitioners to deposit the entire amount. He submits that
clause 'e' of paragraph No.31 would indicate that the Court should
not show mercy to the defendant if his defence is illusory and for
protecting the interest of the plaintiff, can impose the condition that
the amount claimed should be paid in the Court or should be
otherwise secured. He, therefore, submits that such discretion
exercised by the Trial Court should not be interfered with by this
Court in its supervisory or writ jurisdiction, which is akin to
revisional jurisdiction.
6. Mr.Sawant submits that these petitioners are poor villagers.
Petitioner No.1 is about 70 years old and his wife petitioner No.2 is
about 48 years old. He states that the respondent is a flourishing
legal practitioner at Dist.Beed. Taking into account the comparable
hardships and the balance of convenience, a lesser amount could be
directed to be deposited.
7. Mr.Sawant submits on instructions from the petitioners that
they would deposit Rs.25,000/- before the Court below within a
khs/JUNE 2017/5820
period of 4 weeks keeping in view that the sowing season and
agricultural activities have commenced and the petitioners have to
purchase seeds for sowing and may not have so much of money in
cash.
8. Considering the above, this petition is partly allowed. The
impugned order dated 12/04/2016 is modified. The petitioners shall
deposit the amount of Rs.25,000/- in the summary proceedings
within 4 weeks from today, failing which, this order shall stand
recalled and the impugned order shall stand restored. After the said
amount is deposited, the learned Court shall direct the investing of
the amount in a Nationalized bank initially for a period of 1 year.
9. Rule is made partly absolute in the above terms.
10. Needless to state, the petitioners shall not attempt to delay the
proceedings before the Court below and shall refrain from taking
adjournments on unreasonable grounds.
( Ravindra V.Ghuge, J.)
khs/JUNE 2017/5820
