Surender Kumar vs Manoj Kumar
2021 Latest Caselaw 3188 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Date of Decision: 24th November, 2021
+                           C.R.P. 57/2020
        SURENDER KUMAR                                   ..... Petitioner
                     Through: Mr. Harsh Kumar & Ms. Sikha Gogi,
                                 Advocates (M: 8076772278)
                     versus
        MANOJ KUMAR                                 ..... Respondent
                     Through: Mr. Hemant Chaudhary, Advocate
                                 (M-9891384449).
        CORAM:
        JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. CM APPL. 10311/2021 (for clarification/ modification)

2. The present application arises out of the revision petition that was filed by the Petitioner/Plaintiff (hereinafter "Plaintiff") challenging the impugned order dated 18th August, 2020, by which the Plaintiff's suit instituted under Order XXXVII of CPC had been converted into an ordinary suit, and unconditional leave to defend had been granted to the Defendant. Vide order dated 15th December, 2020, this Court was considering the question as to whether an unconditional leave to defend ought to be granted or any conditions were to be imposed in respect of the same. On the said date, the Trial Court's order dated 18th August, 2020 was substantially modified, and this Court has observed as under:

"13. In support of the plea of the Defendant that he gave a loan to the Plaintiff in 2013-14, which was being given on a continuous basis of various amounts

from time to time, there is not a single document that has been placed on record. It is highly improbable that any party which is giving huge sums of money would not file a single receipt or promissory note and merely proceed to lend money on some oral arrangement. Even otherwise, a perusal of the leave to defend does not inspire confidence.

14. Considering the fact that the amount, which was transferred by the Plaintiff to the Defendant was through proper banking channels for which clear evidence has been placed on record, the suit under Order XXXVII CPC would be maintainable as it is for a liquidated sum. The onus would be on the Defendant to show as to why the leave to defend should be granted.

15. At this stage, since Id. counsel for the Defendant clearly concedes that no document has been placed on record in support of the plea that a loan was given to the Plaintiff, allowing unconditional leave to defend would not be in accordance with law. At best, since the written statement has now been filed and the suit is proceeding further, this Court is of the opinion that the suit under Order XXXVII CPC is maintainable but some conditions be imposed upon the Defendant to permit him to defend his case.

16. Accordingly, it is directed that the Defendant shall furnish either a Bank Guarantee or any other security to the tune of Rs.10 lakhs, to the satisfaction of the Trial Court, within 8 weeks. Subject to the said condition being fulfilled, the written statement shall be taken on record and trial in the suit shall continue."

3. This is an application filed on behalf of the Respondent/Defendant (hereinafter "Defendant") seeking modification of the order dated 15th December, 2020 passed by this Court, to the extent that the said order records the submission of the ld. Counsel for the Defendant, that the

"written statement has now been filed". It is the case of the Defendant that the said statement was inadvertently made. However, Ld. Counsel for the Defendant submits that the security of Rs. 10,00,000/- has been furnished, in compliance of order dated 15th December, 2020.

4. On the last date, ld. Counsel was directed to place on record the complete order sheet of the Trial Court, post the disposal of the present petition. The said order sheet has now been handed over by ld. Counsel for the Plaintiff. A perusal of the orders dated 27th February, 2021 and 6th March, 2021 passed by the Trial Court in CS No.791/2018 titled "Surender Kumar v. Manoj Kumar", shows that the statement made on behalf of the Defendant on 15th December, 2020 was completely misleading and incorrect. The relevant orders of the Trial Court dated 27th February, 2021 and 6th March, 2021, are extracted below:

Order dated 27th February, 2021-

"Written statement not filed as yet. Defendant's proxy counsel states main counsel has fractured her leg and as such that the written statement could not be filed. Plaintiff's counsel however states that the defendant misled the Hon'ble Delhi High Court by representing that they have already filed the written statement. Plaintiff's counsel states that defendant's submission about filing of the written statement has been noted in order dt. 15.12.2020 and the same was reiterated in the order dt. 29.01.2021."

Order dated 6th March, 2021-

"However, in the present case the written statement has not been filed as yet. It is noted in the aforesaid orders of High Court that the written statement is already filed. Defendant's counsel however, states that he had not made such a submission before the High

Court and that probably it was on account of miscommunication through the video conference. In any case, he goes on to state that he has already filed an urgent application before the High Court seeking rectification in the aforesaid orders and which is listed for 09.03.2021. Put up on 25.03.2021."

5. A perusal of the order dated 15th December, 2020 would show that one of the factors which weighed with the Court was that subsequent to the passing of the impugned order dated 18th August, 2020, the written statement has been filed by the Defendant, which was a clear and categorical assertion made by ld. Counsel for the Defendant before the Court. Whereas, a perusal of the Trial Court's orders in CS No.791/2018, extracted hereinabove, now shows that even as of 6th March, 2021, the written statement was not filed by the Defendant. Thus, the statement made on behalf of the Defendant before this Court, which weighed with this Court on 15th December, 2020, was wrong and misleading. The application which has been moved by the Defendant seeks clarification or modification of this position.

6. Mr. Hemant Choudhary, ld. Counsel for the Defendant, fairly concedes that he did make a statement before this Court, on 15th December, 2020 to the effect that the written statement was filed. However, he submits that the same came to be finally filed on 12th March, 2021, as is recorded in the Trial Court's order dated 25th March, 2021. The security for the sum of Rs.10,00,000/- is now stated to have been furnished before the Trial Court, in terms of order dated 15th December, 2020 in this petition.

7. Considering the fact that the suit has now proceeded further before the Trial Court, this Court is not inclined to modify its order dated 15th

December, 2020. It is relevant to note that the leave to defend itself was considered in the context of the submission made by ld. Counsel for the Defendant stating that the written statement was already filed and the said statement has been proved to be contrary to the record. Thus, this Court is of the opinion that the same was clearly not an innocent mistake but an attempt to `steal a march'. Accordingly, in the facts and circumstances of this case, the Defendant shall be liable to pay a sum of Rs.50,000/- as costs to the Plaintiff for making an incorrect statement before this Court. The costs shall be tendered on or before 15th January, 2021.

8. It is made clear that since the suit is to be proceeded with as a suit under Order XXXVII of CPC, where there is a sense of urgency, the Trial Court shall endeavour to dispose of the suit expeditiously, and in any case, within a period of nine months. The Trial Court shall proceed further now in accordance with law.

9. A perusal of the Trial Court orders in the suit also shows that adjournments are repeatedly being taken by the Defendant. It is made clear that no adjournments shall be granted to the Defendant.

10. Even today, the Plaintiff submits that he has not been served with a copy of the Defendant's written statement. If so, the Trial Court would look into this matter and deal with the said grievance of the Plaintiff in accordance with law.

11. With these observations, the present application is disposed of.

PRATHIBA M. SINGH JUDGE NOVEMBER 24, 2021 dj/ad