Bombay High Court
Santosh S/O Tarachandji Tated vs Kalpesh S/O Mansukhlal Thakkar on 29 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.7743/2017
Santosh S/o Tarachandji Tated,
aged about 41 Yrs., Occu. Business,
R/o Jain Mandir Colony, Bhadrawati,
Tq. Bhadrawati, Distt. Chandrapur. ..Petitioner.
..Vs..
Shri Kalpesh S/o Mansukhlal Thakkar,
aged about 31 Yrs., Occu. Business,
R/o Guru Nagar, Main Road,
Bhadrawati, Tq. Bhadrawati,
Distt. Chandrapur. ..Respondent.
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Shri M.P. Khajanchi, Advocate for the petitioner.
Shri S.M. Prasad, Advocate for the respondent.
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CORAM : Z.A. HAQ, J.
DATE : 29.1.2018.
ORAL JUDGMENT
1. Heard Shri M.P. Khajanchi, Advocate for the petitioner and Shri
S.M. Prasad, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The petitioner / original plaintiff has challenged the order passed by
the trial Court by which the application (Exh. No.29) filed by the respondent /
defendant is allowed and the defendant is granted leave to defend the
summary suit filed under order XXXVII of the Code of Civil Procedure,
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unconditionally.
4. The plaintiff has filed the civil suit seeking decree for amount of
Rs.23,000,00/- (Rs. Twenty Three Lakhs), which amount according to the
plaintiff is to be recovered from the defendant. The plaintiff relies upon the
cheque, which according to the plaintiff, was given by the defendant and which
cheque is not honoured.
The defendant had filed application (Exh. No.29) seeking leave to
defend. According to the defendant, he lost blank cheque signed by him and it
appears that the plaintiff got the blank cheque with signature of the defendant
and he is misusing it to make false claim.
5. Though according to the defendant he lost cheque on 1 st December,
2015 and lodged police complaint immediately, there is nothing on record to
show that the defendant had given intimation to the bank asking the bank not
to honour the cheque in question. The defendant has admitted that he is
acquainted with the plaintiff and they had business transactions. Considering
the facts of the case, in my view, the learned trial Judge has committed an
error in granting unconditional leave to the defendant to defend the civil suit.
6. The Advocate for the respondent / defendant has supported the
impugned order contending that triable issues arise for consideration.
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Reliance is placed on the judgment given in the case of IDBI Trusteeship
Services Limited V/s. Hubtown Limited reported in (2017) 1 SCC at page 568.
However, considering the facts of the case, I find that the judgment is not of
any assistance to the defendant.
7. Hence, the following order:
(i) The impugned order is modified.
(ii) It is directed that if the defendant deposits an amount of
Rs.23,000,00/- (Rs. Twenty Three Lakhs) [amount of cheque in issue] till 15 th
March, 2018, the defendant would be entitled for leave to defend the civil suit.
(iii) If the defendant fails to deposit the amount of Rs.23,000,00/- (Rs.
Twenty Three Lakhs) till 15th March, 2018, the application (Exh. No.29) filed
by the defendant shall stand dismissed.
8. Rule is made absolute in the above terms.
The respondent / defendant shall pay costs of Rs.10,000/- (Rs. Ten
Thousand) to the petitioner / plaintiff and produce receipt of it on record of the
civil suit within one month.
JUDGE
Tambaskar.
