Bombay High Court
Ravi R Mekala vs Miss Arti Digambar Honrao on 22 August, 2023
Bench: Amit Borkar
2023:BHC-AS:23983
906-wp-10366-2023.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10366 OF 2023
Ravi R. Mekala ... Petitioner
V/s.
Arti Digambar Honrao ... Respondent
NIKITA
KAILAS
DARADE Mr. Irvin D'souza for the Petitioner.
Digitally signed by
NIKITA KAILAS
DARADE
Date: 2023.08.23
14:28:50 +0530
CORAM : AMIT BORKAR, J.
DATED : AUGUST 22, 2023
P.C.:
1. Challenge in this petition is to the order dated 10 th December
2021 passed by City Civil Court Mumbai and order dated 20 th April
2023, in Review Petition No 136 of 2022. The respondent filed
summary suit No.901 of 2015, based on promissory note issued by
the petitioner. According to the plaintiff, he gave friendly loan of
Rs.5,00,000/- to the defendant. The defendant had issued demand
promissory note along with cheque. On presentation, cheque were
dishonoured. Since, there was failure to repay the amount The
plaintiff filed summary suit for recovery of Rs.5,00,000/- along
with the interest.
2. In the said suit, the plaintiff took out summons for judgment.
Petitioner/Defendant filed written statement and sought leave to
defend. Leave to defend was sought on the ground that
Rs.5,00,000/- were never paid to the defendant. There was
906-wp-10366-2023.doc
relationship of employer and employee. By misusing the said
relationship, the plaintiff got signature of defendant on the
promissory note and the cheque. The signatures on the promissory
note and cheques was under coercion.
3. Therefore, the plaintiff sought unconditional leave to defend.
The City Civil Court by order dated 10 th December 2021, granted
conditional leave to defendant, subject to defendant depositing
amount of Rs.2,50,000/- within one month. On deposit of amount,
defendant was granted liberty to file written statement. The
defendant filed review application bearing No. 136 of 2022. The
Trial Court by order dated 20th April 2023, dismissed the review
application. The petitioner has, therefore, filed present writ
petition challenging both orders.
4. Learned advocate for the petitioner submitted that the
petitioner has raised a triable issue and is likely to succeed in the
suit. Therefore, petitioner has made out a case for grant of
unconditional leave.
5. According to him, considering the defense raised, the Court
below was justified in directing the petitioner to deposit 50% of
the amount.
6. I have considered the statements and scrutinized the
impugned orders, and other material produced on record by the
petitioner.
7. Insofar as, maintainability of summary suit is concerned,
there is no dispute about following factors:
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a) There is concluded contract.
b) There is promise to pay by the defendant.
8. The parameters for grant of leave under order 37 of Code of
Civil Procedure, 1908 have been laid down by the Apex Court in
the case of B.L Kashyap and Sons Limited v. JMS Steel and Power
Corporation, (2022) 3 SCC 294, the Apex Court after adverting to
the decision in the case of IDBI Trusteeship Services Ltd. v.
Hubtown Ltd. (2017) 1 SCC 568 expounded the law in paragraph
No.33 as under:
"33. It is at once clear that even though in the case of IDBI
Trusteeship, this Court has observed that the principles
stted in paragraph 8 of Mechelec Engineers' case shall
stand superseded in the wake of amendment of Rule 3 of
Order XXXVII but, on the core theme, the principles
remain the same that grant of leave to defend (with or
without conditions) is the ordinary rule; and denial of
leave to defend is an exception. Putting it in other words,
generally, the prayer for leave to defend is to be denied in
such cases where the defendant has practically no defence
and is unable to give out even a semblance of triable
issues before the Court.
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 bonofide or
reasonable 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
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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 is as well as payment into the
Court or furnishing security. In the fourth eventuality,
where the proposed defence appear 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 defend is not to be
granted unless the amount so admitted is deposited by
the defendant in the Court.
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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 about 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."
9. On perusal of the defense raised by the petitioner, it appears
that the signature on the promissory note is admitted by the
petitioner. However, according to him, the signature was obtained
by misusing relationship of employer and employee. Therefore, in
my opinion, that the petitioner has raised triable issue but it is
doubtful, if the petitioner is raising same in the good faith and,
therefore, the Trial Court was well within its power to direct the
petitioner to deposit 50% of the amount.
10. I did not find any error in the order of the Trial Court in
exercising positive jurisdiction. No interference under Article 227
of the Constitution of India is called for.
11. The writ petition stands dismissed.
(AMIT BORKAR, J.)
