M/S. Allied Automobiles And Ors vs John Lazarus D'Souza
2021 Latest Caselaw 3065 Bom

                                                                          (10) CRA-368-19.doc

BDP-SPS

  Bharat
  D.
  Pandit
  Digitally signed
  by Bharat D.
  Pandit
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
  Date:
  2021.02.20
  13:23:11 +0530




                                 CIVIL REVISION APPLICATION NO.368 OF 2019

                     M/s. Allied Automobiles and Anr.              ..... Applicants.
                                 V/s
                     John Lazarus D'Souza                          ..... Respondent.

                     Ms. Aneesa Cheema for the Applicants.
                     None for the Respondent.

                                        CORAM: NITIN W. SAMBRE, J.

DATE: FEBRUARY 16, 2021

P.C.:-

1] For recovery of the amount towards the loan recoverable from

the Applicants, summary proceedings viz. Summary Suit No.27 of

2015 came to be initiated. In the said suit, Applicants/Defendants

moved an application under Order 37 Rule 3 sub-rule (5) seeking

grant of leave to defend which came to be rejected vide impugned

order dated 23/1/2019 by the City Civil Court, Dindoshi, Mumbai. As

such, this Petition.

2] Submissions are, Plaintiff/Respondent was partner of the

Firm/Defendant Nos. 1 and 2 and subsequently it was discovered that

the Plaintiff has played certain fraud in the management of the

(10) CRA-368-19.doc

partnership firm. In the aforesaid backdrop, it is claimed that certain

amount of money is due and payable from Plaintiff to the Firm and

that being so nature of dispute can be inferred to be that of settlement

of accounts of partnership firm.

3] In the aforesaid backdrop, claim is, there is sound defendable

case in favour of the Applicants/Defendants and the court below ought

to have granted unconditional leave to defend.

4] Further contention is, even if what has been stated in the plaint

is accepted without admitting for the sake of argument, still fact

remains that loan due and payble as has been claimed by the Plaintiff/

Respondent is based on the disputed liability which the court below

ought to have appreciated. It is further claimed that very claim in the

plaint is based on illegal entries, is not appreciated by the court below.

5]    Considered rival submissions.



6]    Application came to be moved by the Applicants after Summons

for Judgment under sub-rule (4) of Rule 3 of Order 37 came to be

(10) CRA-368-19.doc

served. Subsequent thereto, Applicants/Defendants moved an

application for leave to defend under sub-rule (5). Though Applicants

have claimed that there is strong defendable case in favour of the

Applicants, however, upon perusal of the pleadings in the Plaint and

other documentary evidence and the fact that the Applicants have

denied liability to pay the amount, court below has considered the

documents produced by the Respondent/Plaintiff at Exhibit-10

whereby it could be prima facie inferred that the Applicants have

acknowledged the liability.

7] Apart from above, fact remains that the Respondent/Plaintiff

claims to have retired from the Firm in 2004 and partnership firm i.e.

Defendant No.1 came to be reconstituted. The alleged claim in the

application for unconditional leave to defend that there was fraud

practiced by the Plaintiff on the Firm and certain amount is receivable

from the Plaintiff himself cannot be accepted for the purpose of

granting unconditional leave as the claim raised therein appears to be

time barred.

8] In the aforesaid backdrop, order of granting leave to defend on

(10) CRA-368-19.doc

condition of deposit of the amount does not appear to be unreasonable

or contrary to scheme of sub-rule (5) of Rule 3 of Order 37 of CPC.

That being so, no case for interference is made out. Revision

Application fails and same stands dismissed. However, period for

deposit of amount is extended by four weeks from today.

( NITIN W. SAMBRE, J. )