Bombay High Court
Parul Wd/O Kirit Karia And Others vs Nilesh S/O Kiritbhai Lakhani on 18 October, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6517/2022
Parul Wd/o Kirit Karia & Ors.
Vs.
Nilesh S/o Kiritbhai Lakhani
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. P.P. Kothari, Advocate for the Petitioners.
Mr. M.K. Thakkar, Advocate for the Respondent.
CORAM : AVINASH G. GHAROTE, J.
DATED : 18th OCTOBER, 2022.
Heard Mr. Kothari, learned counsel for the
petitioners and Mr. Thakkar, learned counsel for the
respondent on caveat.
2. The petition challenges the order dated
11.08.2022, whereby the learned Trial Court, while allowing
the application for leave to defend, has granted leave subject
to 50% payment of the suit claim within two months.
3. Mr. Kothari, learned counsel for the petitioners,
while assailing the said order contends, that the very issuance
of the cheque in question, by Kirit Karia of whom the
petitioners are the legal heirs, is doubtful, as the said cheque,
was a bearer cheque and is undated and was drawn on a joint
account (page 29). It is submitted that Kirit Karia, has passed
away on 23.02.2021 and the suit has been filed on
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04.01.2022. The cheque has also not been presented for
encashment at any time during its validity, all of which, clearly
indicate the existence of a substantial defence for granting
unconditional leave to defend. It is submitted that this position
has not been properly construed by the Trial Court, while
passing the impugned order.
4. Mr. Thakkar, learned counsel for the respondent on
caveat submits, that the cheque in question (page 29) has
been issued by the petitioner No.3 along with the other
petitioners, after the demise of Kirit Karia. He further submits,
that the existence of the transaction, has also been admitted
by the petitioners, in their application for leave to defend in
para 6(III) page 47, considering which, the impugned order is
clearly justified. Further relying upon the judgment in the case
of B.L. Kashyap and Sons Limited Vs. JMS Steels and Power
Corporation and Another reported in (2022) 3 SCC 294 para
33.1, it is submitted that even if the defendant raises a triable
issue, it is not necessary that an unconditional leave needs to
be granted.
5. In B.L. Kashyap (supra), while enunciating the
grounds on which the question of leave to defend is to be
considered, the Hon'ble Apex Court has held as under:
"33.1. As noticed, if the defendant satisfies the
Court that he has substantial defence i.e. a defence
which is likely to succeed, he is entitled to
unconditional leave to defend. In the second
eventuality, where the defendant raises triable
issues indicating a fair or bona fide or reasonable
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defence, albeit not a positively good defence, he
would be ordinarily entitled to unconditional leave
to defend. In the third eventuality, where the
defendant raises triable issues, but it remains
doubtful if the defendant is raising the same in
good faith or about genuineness of the issues, the
trial court is expected to balance the requirements
of expeditious disposal of commercial causes on
one hand and of not shutting out triable issues by
unduly severe orders on the other. Therefore, the
Trial Court may impose conditions both as to time
or mode of trial as well as payment into the court
or furnishing security. In the fourth eventuality,
where the proposed defence appears to be
plausible but improbable, heightened conditions
may be imposed as to the time or mode of trial as
also of payment into the court or furnishing
security or both, which may extend to the entire
principal sum together with just and requisite
interest.
33.2. Thus, it could be seen that in the case of
substantial defence, the defendant is entitled to
unconditional leave; and even in the case of a
triable issue on a fair and reasonable defence, the
defendant is ordinarily entitled to unconditional
leave to defend. In case of doubts about the intent
of the defendant or genuineness of the triable
issues as also the probability of defence, the leave
could yet be granted but while imposing conditions
as to the time or mode of trial or payment or
furnishing security. Thus, even in such cases of
doubts or reservations, denial of leave to defend is
not the rule; but appropriate conditions may be
imposed while granting the leave. It is only in the
case where the defendant is found to be having no
substantial defence and/or raising no genuine
triable issues coupled with the court's view that the
defence is frivolous or vexatious that the leave to
defend is to be refused and the plaintiff is entitled
to judgment forthwith. Of course, in the case
where any part of the amount claimed by the
plaintiff is admitted by the defendant, leave to
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defend is not to be granted unless the amount so
admitted is deposited by the defendant in the
court.
33.3. Therefore, while dealing with an application
seeking leave to defend, it would not be a correct
approach to proceed as if denying the leave is the
rule or that the leave to defend is to be granted
only in exceptional cases or only in cases where the
defence would appear to be a meritorious one.
Even in the case of raising of triable issues, with
the defendant indicating his having a fair or
reasonable defence, he is ordinarily entitled to
unconditional leave to defend unless there be any
strong reason to deny the leave. It gets perforce
reiterated that even if there remains a reasonable
doubt about the probability of defence, sterner or
higher conditions as stated above could be imposed
while granting leave but, denying the leave would
be ordinarily countenanced only in such cases
where the defendant fails to show any genuine
triable issue and the court finds the defence to be
frivolous or vexatious."
6. Applying the above principles, it is apparent, that
the statement of Mr. Thakkar, learned counsel for the
respondent-plaintiff, that the cheque was not given by Kirit
Karia, during his lifetime but by the petitioner No.3 along with
the other petitioners after the demise of Kirit Karia, itself,
would be a ground sufficient to grant unconditional leave to
defend, as the cheque, in question has been issued by a dead
person according to him. That apart, the averments in para
6(III) of the application for leave to defend does not indicate
any admission regarding the transaction of the plaintiff with
Kirit Karia, but only hint at the existence of a possibility of the
same.
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7. Though reliance is placed upon a receipt purported
to be issued by Kirit Karia in favour of the plaintiff (page 16),
a perusal of the same would indicate that it is totally
unreliable as except for mention of the receipt of the sum of
Rs.5,00,000/- and the signature below that it does not bear
the person in whose favour it has been executed, so as to
enable the plaintiff, to raise a claim that it was executed in
favour of the plaintiff.
8. It is also necessary to state, that the plea under
Sections 50 and 51 of the Code of Civil Procedure, 1908
would also fall for consideration, as the suit has been filed
against the legal heirs of deceased Kirit Karia.
9. It is, therefore, apparent, that substantial defence is
prima facie made out to indicate issues, being raised, which
require consideration, in view of which, in light of what has
been held in B.L. Kashyap (supra) (para 33.1), this is a fit case
for grant of unconditional leave.
10. The impugned order is, therefore, hereby quashed
and set aside and the application for grant of unconditional
leave at Exh.15, is hereby allowed. The writ petition is
allowed. No costs.
(AVINASH G. GHAROTE, J.)
Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Vijay
Signing Date:19.10.2022 17:25
