Javed Abdul Hamid Khan vs Pratik V. Shah
2021 Latest Caselaw 10967 Bom

                                                                                 14-CRA-68-21.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed by
  BHARAT
  DASHARATH
  PANDIT
  Date: 2021.08.13
                                           CIVIL APPELLATE JURISDICTION
                                    CIVIL REVISION APPLICATION NO. 68 OF 2021
  17:38:45 +0530




                        Mr. Javed Abdul Hamid Khan                     ....Applicant.
                              V/s
                        Mr. Pratik V. Shah                             .....Respondent
                        ----
                        Mr. Mohit P. Jadhav a/w Ms. Megha Shigavan a/w Ms. Kajal
                        Chourasia for the Applicant.
                        Mr. Manoj Agre i/b Girish B. Kedia for the Respondent.
                        ----

                                           CORAM: NITIN W. SAMBRE, J.

DATE: AUGUST 12, 2021 P.C.:-

1] This Petition is by Defendant to summary suit for recovery

wherein prayer of the Plaintiff for issuance of Summons for Judgment

came to be rejected. However, Petitioner is granted conditional leave

to defend, subject to deposit of Rs 2 lakhs as against the claim of Rs 4

lakhs made in the suit.

2] Learned Counsel for the Petitioner/Defendant would invite

attention of this Court to the provisions of Order 37 Rule 2 so as to

canvas that claim of the Respondent/Plaintiff cannot be entertained

under the provisions of Order 37 particularly when same is based on

14-CRA-68-21.doc

theory of hand-loan which is not covered under Rule 2. His further

contention is, Plaintiff was using the property of the

Petitioner/Defendant and has carried out certain modification in the

same for which the amount of Rs 4 lakh was given.

3] Fact remains that the Petitioner/Defendant intends to defend the

suit. In the aforesaid background, if we consider the condition to

which Petitioner/Defendant is put to i.e. deposit of amount of Rs 2

lakh as against the suit claim of Rs 4 lakhs, same appears to be

reasonable. The said claim is based on bank entry wherein amount of

Rs 4 lakh was transferred to the Account of Petitioner/Defendant.

Even if the word used in the notice and the plaint is 'loan', this Court

however needs to be conscious to the fact that claim under Order 37

Rule 2 was required to be brought into action in relation to debt. That

being so, contention that the suit claim cannot be covered under Order

37 Rule 2 is rejected.

4] This Court, vide order dated 8th April, 2021 directing notice, has

put the Petitioner/Defendant to condition of deposit of Rs 2 lakhs (by

mistake mentioned as Rs 2000/-) which admittedly the Petitioner has

14-CRA-68-21.doc

not complied with till this date. Order 37 Rule 3 sub-rule (5)

contemplates grant of leave to defend and in the present case

Petitioner is not disputing that he intends to defend the suit which has

prevailed before the Court below while putting him to condition of

deposit of Rs 2 lakhs which appears to be quite reasonable. The

aforesaid condition of deposit of Rs 2 lakh is based on admitted

pleadings about transfer of amount of Rs 4 lakh in the Account of the

Petitioner/Defendant by the Respondent/Plaintiff.

5] In the aforesaid backdrop, in my opinion, no case for

interference in extraordinary jurisdiction is made out. Petition fails

and same stands dismissed.

6] Time to deposit the amount of Rs 2 lakhs is extended by two

weeks.

( NITIN W. SAMBRE, J. )