Bombay High Court
Shri. Sanjay Damu Batav vs Dr. Vinayak D. Joshi on 11 October, 2023
Bench: Amit Borkar
2023:BHC-AS:30165
13-wp-2765-2020.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2765 OF 2020
Sanjay Damu Batav ... Petitioner
SHABNOOR
AYUB
PATHAN
V/s.
Vinayak D. Joshi ... Respondent
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2023.10.11
18:33:03 +0530
Mr. Girish R. Agrawal, for petitioner.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 11, 2023
P.C.:
1. By this writ petition under Article 227 of the Constitution of
India, the petitioner is original plaintiff in a summary suit is
challenging order passed by the Trial Court granting unconditional
leave to defend.
2. The order dated 5 August 2019 granting unconditional leave
is challenged by the petitioner by the present writ petition.
3. This Court on 13 July 2022 issued notice for final disposal.
Office remark dated 5 July 2023 indicates that the respondent is
served through Court Bailiff.
4. In addition to the Court's notice, the petitioner has served
respondent privately and has filed affidavit of service. Despite
service none appears for the respondent either personally or
through his Advocate.
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5. Plaintiff filed suit for recovery of R.1,17,25,667/- along with
interest based on promissory note dated 12 May 2017. According
to him, on the same day, the defendant executed indemnity bond
in presence of witness. Despite issuance of promissory note, the
defendant failed to pay the amount; hence, the plaintiff issued
demand notice. Despite receipt of demand notice, defendant failed
to pay the amount. Hence, the petitioner filed Summary Suit
No.189 of 2017.
6. In reply to Summons For Judgment, the defendant
contended that the plaintiff has prepared false and fabricated
documents and his signature was obtained fraudulently.
7. In clause (V) of the application seeking leave to defend, the
defendant states that the promissory note dated 12 May 2017 was
not executed by him with its true intent, meaning and by going
through or understanding the contents of document. The later
portion of the said paragraph indicates that the defendant accepts
signature on the promissory note. The defendant in paragraph (V)
has admitted signature by making averments as under:
"........The mode and the manner in which the said
promissory note has been prepared and got signed from
this defendant is not proper and legal and the same is not
enforceable in the eyes of law and not binding upon the
defendant...."
8. The Trial Court in paragraph 4 of the order holds that the
defendant denied legality of the promissory note and also
challenged mode of its execution. However, he admitted his
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transaction with the plaintiff, relying on the judgment in the case
of Mechalec Engineers and Manufacturers Versus Basic Equipment
Corporation, reported in AIR 1977 SC 577, the Trial Court granted
unconditional leave to defend.
9. After amendment of 1976, the Apex Court in the case of IDBI
Trusteeship Services Limited Versus Hubtown Limited, (2017) 1
SCC 568, has held that the judgment in the case of Mechalec
Engineers and Manufacturers (Supra) is superseded and the
decision in the case of Milkhiram (India) Private Limited Versus
Chamanlal Bros., reported in AIR 1965 SC 1698 is binding
decision.
10. The Apex Court in the case of IDBI Trusteeship Services
Limited (Supra) in paragraph 17 has held as under:
"17.1. If the defendant satisfies the court that he has a
substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign
judgment, and the defendant is entitled to unconditional
leave to defend the suit.
17.2. If the defendant raises triable issues indicating that
he has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled to sign
judgment, and the defendant is ordinarily entitled to
unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt
is left with the trial Judge about the defendant's good
faith, or the genuineness of the triable issues, the trial
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Judge may impose conditions both as to time or mode of
trial, as well as payment into court or furnishing security.
Care must be taken to see that the object of the provisions
to assist expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such triable
issues are not shut out by unduly severe orders as to
deposit or security.
17.4. If the defendant raises a defence which is plausible
but improbable, the trial Judge may impose conditions as
to time or mode of trial, as well as payment into court, or
furnishing security. As such a defence does not raise
triable issues, conditions as to deposit or security or both
can extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or
raises no genuine triable issues, and the court finds such
defence to be frivolous or vexatious, then leave to defend
the suit shall be refused, and the plaintiff is entitled to
judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the amount
so admitted to be due is deposited by the defendant in
court."
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11. The defendant has admitted signature on the promissory
note. However, raised the defence that the contents of the
document were not understood by the defendant, hence essential
ingredients of Order 37, Rule 3 to file summary suit stands
satisfied. Since the signature on the promissory note is admitted,
the case is covered by clause 17.4 of the judgment. Therefore, it is
necessary that the defendant be directed to deposit the amount of
suit claim and on deposit of suit claim he shall be entitled to file a
written statement. Hence, following order:
a) The impugned order dated 5 August 2019 passed by
the 3rd Joint Civil Judge, Senior Division, Thane in Summary
Suit No.189 of 2017 stands modified.
b) The defendant is granted leave to defend on his
depositing entire suit claim within two months from today.
On depositing of such amount, the defendant shall be
entitled to file a written statement.
12. With this modification, the writ petition stands disposed of in
above terms. No costs.
(AMIT BORKAR, J.)
