Delhi High Court
Raj Kumar vs Latafat on 15 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
14:13:08
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th December, 2020
+ C.R.P. 81/2020 & CM APPLs. 32670-72/2020
RAJ KUMAR ..... Petitioner
Through: Mr. Lakshya Dheer & Mr. Piyush
Gupta, Advocates (M-9680592949).
versus
LATAFAT ..... Respondent
Through: Mr. Nizamuddin, Advocate.
(M:9810575581)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. The present petition challenges the impugned order dated 17th March,
2020, passed by the ADJ-05, South East District, Saket Courts, by which the
Trial Court has granted conditional leave to defend to the
Petitioner/Defendant in the suit.
3. A suit for recovery for a sum of Rs.9,50,000/- was filed by the
Respondent/Plaintiff. The transaction was an agreement to sell based on
certain documents in respect of the property measuring 92 sq. yards, bearing
Khasra/Khewat no. 241/192, Khatoni no. 363/33, M. No. 15 Killa No. 15 (8-
0) 16 (8-0), M. No. 23 Killa No. 6 (8-0), situated in the area of Mouja
Agwanpur Abadi , Tehsil & Distt. Faridabad, Haryana (hereinafter, "suit
property"). According to the Plaintiff, a sum of Rs.9,50,000/- was paid to
the Defendant and in turn a promissory note and other documents like GPA,
Agreement to sell and Receipt was executed. The Defendant, however, took
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:16.12.2020 21:47
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
14:13:08
the position that the signatures on all the documents are not genuine and
challenged the existence of the transaction itself. The Trial Court, after
hearing the parties granted leave to the Defendant, via the impugned order,
subject to a deposit of a sum of Rs.9,50,000/- in an FDR.
4. The submission of Mr. Lakshya Dheer, ld. counsel for the Petitioner,
is that the promissory note does not contain the thumb impression of the
Plaintiff/ Respondent, and in any case, the Defendant has very seriously
challenged the genuineness of all the documents filed by the Plaintiff, before
the Trial Court. He relies upon the judgment of the Gujarat High Court in
Jashbhai Motibhai Patel v. Hasmukhbhai Rajivbhai Patel (AIR 1992 Guj
115), to argue that in such a fact situation, an unconditional leave ought to
have been granted.
5. Mr. Nizamuddin, ld. counsel for the Respondent/ Plaintiff, upon a
query from the Court, submits that the entire payment of Rs.9,50,000/- was
made in cash. However, the documents was duly executed by the
Defendant.
6. After hearing the parties and after going through the pleadings on
record, it is clear from the perusal of the application seeing leave to defend
that the Defendant's stand is that he never executed these documents. The
relevant paragraph from the application is set out below:
"7. That the defendant never executed all these
documents namely General Power of Attorney,
Agreement to Sell, Receipt, all dated 22.12.2012
and Promissory Note and Receipt dated
20.12.2013 and letter dated 20.12.2013 are not
signed and executed by the defendant in favour of
Latafat or any person at any point of time."
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:16.12.2020 21:47
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
14:13:08
7. The legal position in respect of granting of leave to defend is well
settled in the judgment of the Supreme Court in IDBI Trusteeship Services
Ltd. v. Hubtown Ltd (2017) 1 SCC 568. The Supreme Court held therein:
"18. Accordingly, the principles stated in paragraph 8
of Mechelec's case will now stand superseded, given
the amendment of O.XXXVII R.3, and the binding
decision of four judges in Milkhiram's case, as follows:
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;
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;
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
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;
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
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:16.12.2020 21:47
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
14:13:08
with such interest as the court feels the justice of the
case requires..
xxx"
8. The decision of the Gujarat High Court in Jashbhai Motibhai Patel
(supra), has been relied upon by the Petitioner to argue that if the signatures
and the very existence of the promissory note are denied, it raises a "triable
issue" and in such a situation, unconditional leave to defend ought to be
granted.
9. A perusal of the impugned order shows that the basic premise on
which the trial court observes that the Defendant's case is not bonafide is
that the Defendant has not denied his thumb impression on the documents.
After this observation, however, the trial court in paragraph 20 concludes as
under:
"However the defendant is given opportunity to prove
its case that he had never entered into any agreement
to sell regarding the said plot, he had not executed the
said documents in favour of the plaintiff, he had not
received sale consideration of Rs. 9,50,000/-, the said
documents do not bear his signatures and thumb
impressions and the suit is barred by limitation."
10. A perusal of the Promissory note cum receipt shows that the same
does not bear the thumb impression of the Defendant. It is a clear plea in the
leave to defend application that the defendant has not executed the
documents i.e., the GPA, Agreement to Sell, Receipt dated 22.12.2012 or
the Promissory Note and Receipt dated 20.12.2013. Thus there is a clear
denial by the Defendant. Moreover, no proof whatsoever has been adduced
to show the payment of the amount of Rs. 9.5 lakhs which is a substantial
sum which is allegedly paid in cash.
11. The question of grant of leave to defend depends on the facts and
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:16.12.2020 21:47
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:17.12.2020
14:13:08
circumstances of each case. There cannot be a hard and fast rule. The Court
has to consider the pleadings and documents and whether they inspire
confidence. In the present case the fact that the entire amount is stated to
have been paid in cash without any acknowledgement, leads this Court to
the conclusion, that the case of the Plaintiff cannot be taken completely on
face value. None of the documents relied upon are registered. Thus, there is
not independent corroboration of the payment of money by the Plaintiff.
Leave to defend is to be granted considering the overall facts. The
defendant's case cannot be held to be completely trivial or moonshine.
12. Another important fact is that the impugned order is dated 17th March,
2020 and the Defendant moved an application seeking extension of the time
for complying with the order, which was granted on 16th October, 2020.
After seeking extension, the present petition has been filed. Accordingly, the
defendant does not deserve unconditional leave but the condition for
granting leave deserves to be modified. The Defendant shall deposit a sum
of Rs.2,00,000/- before the Trial Court within a period of eight weeks from
today.
13. Subject to the deposit of Rs.2,00,000/- before the Trial Court, the
leave to defend is granted, the written statement shall be taken on record and
the suit shall proceed in accordance with law.
14. With these observations the present petition and all pending
applications are disposed of.
PRATHIBA M. SINGH
JUDGE
DECEMBER 15, 2020
dj /Ak
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:16.12.2020 21:47
