Delhi High Court
Sri Niwas [email protected] vs Arvind Kumar Aggarwal on 22 January, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1321/2009
% Decided on: 22nd January, 2015
SRI NIWAS [email protected] ..... Petitioner
Through Mr. B.S. Randhawa, Mr. Dinesh
Kothari, Advs.
versus
ARVIND KUMAR AGGARWAL ..... Respondent
Through None
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The respondent/plaintiff had filed a suit for recovery of `5,39,000/-
under Order 37 CPC wherein the petitioner/defendant sought leave to defend
the suit. By the present petition the petitioner impugns the order dated 27th
July, 2009 to the extent it directs the petitioner to deposit a sum of
`3,50,000/- which is equal to the total cheque amount as security within one
month while granting him leave to defend since triable issues had been
raised by the petitioner herein.
2. Considering the fact that the petitioner/defendant had been able to
demonstrate that neither the original cheques had been filed by the plaintiff
and even the hand-writing on the cheques in question was different than the
other cheques and that the interest amount had also not been calculated, the
Court granted leave to defend since triable issues were raised. The
petitioner/ defendant also pressed his defence that in fact no transaction was
entered into between the plaintiff and defendant, rather the plaintiff had
entered into a transaction with one of the relatives of defendant.
3. Notice was issued in the present petition to the respondent who filed
the reply affidavit, however since none appeared for the respondent for
number of dates he was proceeded ex-parte on 19th July, 2013. Even
thereafter none appears for the respondent. Today also none appears for the
respondent despite pass-over.
4. In M/s. Mechalec Engineers and Manufacturers Vs. M/s. Basic
Equipment Corporation AIR 1977 SC 577 the Supreme Court laid the
following principles for grant of leave to defend as under:
"(a) If the Defendant satisfies the Court that he has a good
defence to the claim on its merits the plaintiff is not entitled to
leave to sign judgment and the Defendant is entitled to
unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a
fair or bona fide or reasonable defence although not a positively
good defence the plaintiff is not entitled to sign judgment and
the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed
sufficient to entitle him to defend, that is to say, although the
affidavit does not positively and immediately make it clear that
he has a defence, yet, shows such a state of facts as leads to the
inference that at the trial of the action he may be able to
establish a defence to the plaintiff's claim the Plaintiff is not
entitled to judgment and the Defendant is entitled to leave to
defend but in such a case the Court may in its discretion impose
conditions as to the time or mode of trial but not as to payment
into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is
illusory or sham or practically moonshine then ordinarily the
Plaintiff is entitled to leave to sign judgment and the Defendant
is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory or
sham or practically moonshine then although ordinarily the
Plaintiff is entitled to leave to sign judgment, the Court may
protect the Plaintiff by only allowing the defence to proceed if
the amount claimed is paid into Court or otherwise secured and
give leave to the Defendant on such condition, and thereby
show mercy to the Defendant by enabling him to try to prove a
defence.
5. The Division Bench of this Court in Babbar Vision India Pvt. Ltd. Vs.
Rama Vision Ltd. 99 (2002) DLT 556 following Santosh Kumar (supra) laid
down that the pre-condition of deposit to grant of leave to defend can be
imposed only when the defence though raises triable issues, however appears
to be mala-fide.
6. There is no finding of mala-fide in the defences raised by the
petitioner arrived at by the learned Trial Court. Considering the facts as
noted, I am of the considered view that the petitioner was entitled to grant of
unconditional leave to defend. Consequently, the impugned order dated 27 th
July, 2009 is set aside to the extent it imposes the condition of deposit of a
sum of `3,50,000/- as security with the Trial Court.
7. Petition is disposed of.
(MUKTA GUPTA)
JUDGE
JANUARY 22, 2015
'ga'
