Bombay High Court
Parmanandan S/O P. Ganpathi ... vs Vikram Somaji Dhabale And Another on 6 September, 2022
Bench: Manish Pitale
1/4 32-WP 3863.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3863 OF 2021
Parmanandan s/o P. Ganpathi Nayanar
vs.
Vikram Somaji Dhabale and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. H. I. Kothari, Advocate for petitioner.
Mr. R. I. Agrawal, Advocate for respondent Nos.1 and 2.
CORAM : MANISH PITALE J.
DATE : 06/09/2022
Heard learned counsel for the parties.
2. By this petition the petitioner (original
plaintiff) has challenged order dated 25/03/2021,
passed by the Court of Civil Judge, Junior Division,
Kamptee in Summary Civil Suit No.03 of 2019,
whereby unconditional leave to defend is granted to
the respondents.
3. The principal grievance of the petitioner is
that the application seeking unconditional leave to
defend ought not to have been granted for the reason
that not even a semblance of a case was made out by
the respondents. It is submitted that mere denial of
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2/4 32-WP 3863.2021
signatures on the document in question could not be
a ground to grant unconditional leave to defend and
that appropriate condition ought to have been
imposed. The learned counsel for the petitioner
insisted that the Court below ought to have imposed
the condition of depositing the loan amount i.e. Rs.4
Lakhs as a condition for granting leave to defend.
4. On the other hand, the learned counsel for
the respondents has relied upon para 19 of the
impugned order which reads as follows :-
"19] The defendants have specifically
and categorically contended that they have never
taken loan from the plaintiff. The written contract
does not bear their signatures nor the signatures
of the witnesses. Witnesses Rekha Talmale and
Suryabhan Talmale have filed their affidavits
(ex.15 and 16) on record and stated, in unison,
that Permanand Nayanar called them in his house
and obtained their signatures over one blank
paper. No such loan transaction was ever taken
place in their presence. On this score alone,
without delving into other grounds of objection, I
may state here that the defendants have
succeeded to raise a substantial defence and
triable issue thus, they are entitled to leave to
defend. Hence, I answer point No.1 in the
affirmative, and in answer point No.2, I pass the
following order .........:"
5. The learned counsel for the respondents
has also relied upon the judgment of this Court in the
case of Smt. Sheel Arora vs. Sanjay Fetah Bahadur
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Srivastava AIR 2004 Bombay 99, to contend that
once the signature on the document in question was
denied and this found support in specific affidavits
filed by alleged witnesses to the said document,
unconditional leave to defend was correctly granted
by the Court below.
6. The material available on record was
considered in the backdrop of submissions made on
behalf of the rival parties. It is found that the suit for
recovery filed by the petitioner is based on a specific
document wherein it is recorded that amount of Rs.4
Lakhs was given to the respondents and that they had
undertaken to return the same and further that if
there was failure on their part to return the amount,
the petitioner was at liberty to institute appropriate
proceedings in a Court of law. The document is
alleged to have been signed by the respondents as
well as the witnesses. The respondents have denied
their signatures on the document in question and the
Court below has referred to two affidavits filed by the
alleged witnesses stating that their signatures were
obtained on blank paper.
7. Considering the position of law laid down
by this Court in the aforementioned judgment and
the averments made on behalf of the respondents in
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the application seeking unconditional leave to
defend, the finding rendered at paragraph 19 of the
impugned order cannot be said to be unreasonable.
Therefore, interference in the impugned order is not
warranted.
8. Nonetheless, it is pointed out by the
learned counsel for the petitioner that the petitioner
is a senior citizen aged about 79 years and that
therefore, the proceedings before the Court below
ought to be expedited.
9. In view of the above, the Writ Petition is
dismissed. The Court below is directed to expedite
the proceedings in Summary Civil Suit No. 03 of
2019 and to decide the same at the earliest,
preferably within three months from today.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:07.09.2022
18:31
KOLHE
