M/S. Allied Travels And Ors vs Corrine John D'Souza
2021 Latest Caselaw 2970 Bom

                                                                      13.369.19 cra.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                     CIVIL REVISION APPLICATION NO. 369 OF 2019

      M/s. Allied Travels                                            ....Applicants
      and others

              V/s.

      Corrine John D'Souza                                           .....Respondent

      Ms. Aneesa Cheema for the Applicants
      None for Respondent


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 15, 2021.

      P.C.:

      1]      In Summary Suit No. 76 of 2016 Respondent fled summons for

Judgment under Order 37 Rule 3 (5) of the Code of Civil Procedure,

1908.

2] Present Applicant-Defendant to the said Suit, fled an

Application for leave to defend on 10th September 2018. It is the

contention of the Plaintiff in aforesaid summary suit being 26 of

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2015, that her husband was a partner of defendant number 1 who

retired from the business in 2004. In the books of account a sum of

Rs. 5,95,000/- was shown which should have been paid to the

petitioner by the respondent.

3] Application Exhibit 18 praying grant of unconditional leave to

defend came to be fled as respondent-plaintiff moved a request for

issuance of the summons for Judgment. According to petitioner

considering the nature of transaction cited in the suit, same is not

maintainable in view of Rule 2 of Order 37 of the Code of Civil

Procedure, 1908. It is further claimed that after deletion of defendant

No. 3 who was the partner, suit suffers from non joinder of necessary

party. It is also claimed that husband of the respondent-plaintiff has

tampered with old account books of the Firm thereby benefting

respondent-plaintiff and as such there is a strong defendable case.

That being so, court should have granted unconditional leave to

defend.

4] With the assistance of the learned counsel, I have perused the

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proceedings taken out for permission to leave to defend and pleadings

in the plaint. If the aforesaid contentions of the petitioner are

appreciated, suit is for recovery of the amount payable by the

petitioner to the respondent-plaintiff. Pursuant to the provisions of

Order 37 sub Rule 2 (b) of Rule 1 of CPC, suit in which plaintiff seeks

only recovery of debt or liquidated demand in money payable by the

defendant with or without interest can not be said to be barred as

summary suit. The word debt in the said provision is required to be

taken note of.

5] Apart from above the fact remains that there is confrmation

letter issued by the defendant admitting that the partnership frm

M/s. Allied Travels is required to repay the loan due to the plaintiff-

respondent as there is an admitted debt payable by the petitioner to

the respondent. Hence, court below was justifed in directing the

petitioner to deposit amount of Rs. 5,95,000/- in the court subject to

which petitioner defendant can be granted leave to defend. In view of

the admission as could be derived from the documents about the

liability, court below was justifed in rejecting the claim of the

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petitioner for granting unconditional leave to defend. Condition

incorporated in an order of leave to defend is based on documentary

evidence.

6] The order putting petitioner to condition appears to be based on

documentary evidence of the petitioner-defendant. As such, prima

facie there appears to be a prima facie case against petitioner-

defendant in the matter of suit claim. In view of above, no case for

interference is made out. Petition is dismissed.

7] However petitioner is permitted to deposit the amount within a

period of four weeks from today.

[NITIN W. SAMBRE, J.]