Sat. Manda Wd/O. Ashokrao Bhondle vs Smt. Sharda Sanjay Dhopte
2017 Latest Caselaw 871 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 WRIT PETITION NO. 3443 OF 2016


 Smt. Manda wd/o Ashokrao Bhondle,
 Aged about 43 years, Occ. - Housewife,
 R/o Near Doodh Dairy, Sai Medical, 
 Ganeshpeth, Nagpur.                                              ....       PETITIONER


                     VERSUS


 Smt. Sharda Sanjay Dhopte, 
 R/o Near Mokshdham, Kumbhartoli,
 In front of Dhantoli Corporation Zone
 Office, Nagpur.                                                  ....       RESPONDENT


 ______________________________________________________________
              Shri S.S. Sitani, Advocate for the petitioner, 
            Shri A.S. Bhalerao, Advocate for the respondent.
  ______________________________________________________________

                               CORAM : Z.A. HAQ, J.

DATED : 20 MARCH, 2017.

th

ORAL JUDGMENT :

Heard Shri S.S. Sitani, Advocate for the petitioner and

Shri A.S. Bhalerao, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

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3. The original plaintiff takes exception to the order passed

by the trial Court condoning the delay in filing application praying for

grant of leave to defend and allowing the application (Exhibit No.15)

and granting permission to the defendant to defend.

4. As far as the order passed by the trial Court condoning the

delay in filing the application praying for leave to defend is concerned,

I find that the trial Court has properly adverted to the relevant aspects

and that part of the order is not required to be interfered with.

5. However, in my view, the order passed by the trial Court

on the application (Exhibit No.15) is unsustainable.

In paragraph No.11 of the impugned order, the learned

trial Judge has recorded that the cheques which are produced on

record showing that deceased husband of the defendant has issued

those cheques to fulfill the obligation of paying the amount to the

plaintiff, show that they are issued after the death of husband of the

defendant. The learned Advocate for the plaintiff has pointed out from

paragraph No.5 of the application (Exhibit No.15) that the defendant

has admitted that those cheques are issued as security. Before this

Court, this is disputed by the defendant. This issue will have to be

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considered by the trial Court at the appropriate stage, however,

considering the facts of the case, in my view, this is not a case for

granting leave to defend without imposing conditions. The trial Court

has failed to appreciate this aspect and therefore, the impugned order

is unsustainable.

6. Hence, the following order :

(i) The order passed by the trial Court condoning the delay in

filing application praying for grant of leave to defend is

maintained.

(ii) The order passed by the trial Court allowing the

application (Exhibit No.15) is modified and it is directed

that if the defendant deposits the amount of Rs.3,50,000/-

before the trial Court till 30-03-2017, the defendant will

be permitted to defend the suit.

If the amount is not deposited till 30-03-2017, the trial

Court shall proceed further in the matter according to law.

Rule made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

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Civil Application No.706/2017.

By this application, the respondent/original defendant

prays that the petitioner/plaintiff be directed to produce the copy of

alleged cheques on record. As the petition is disposed, the civil

application is not considered and liberty is granted to the defendant to

seek appropriate orders from the trial Court in the matter.

The civil application is disposed accordingly.

JUDGE

adgokar