Manish vs Dharmendra
2022 Latest Caselaw 5994 MP

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                     IN THE HIGH COURT OF MADHYA PRADESH
                                    AT INDORE
                                       BEFORE
                      HON'BLE SHRI JUSTICE ANIL VERMA

                            ON THE 23rd OF APRIL, 2022

                       MISC. PETITION No. 1501 of 2021

     Between:-
   MANISH S/O BABULAL CHAUDHARY OCCUPATION: BUSINESS, ADD FLAT
   NO. 202, BLOCK-A, RADHE REGENCY, NEAR RAILWAY CROSSING,
1.
   RAJENDRA NAGAR, INDORE (MADHYA PRADESH)

   SHOBHA BAI W/O BABULAL CHOUDHARY OCCUPATION: HOSUE WIFE
2. ADD :- FLAT NO. 202, BLOCK A RADHE REGENCY NEAR RAILWAY
   CRSSING RAJENDRA NAGAR INDORE (MADHYA PRADESH)
                                                                  .....PETITIONERS
     (BY SHRI A.S. CHOUHAN, ADVOCATE)

     AND

     DHARMENDRA S/O MOHANLAL KACHAWA , AGED ABOUT 38 YEARS,
     OCCUPATION: BUSINESS, ADD :- 94-B, RAJENDRA NAGAR, INDORE
     (MADHYA PRADESH)
                                                                  .....RESPONDENT
     (BY SHRI RIZWAN KHAN, ADVOCATE)
     This petition coming on for admission this day, the court passed the following:

                                       ORDER

The petitioners have filed the present petition under Article 227 of the Constitution of India, being aggrieved by impugned order dated 4.03.2020, passed by the 14th Civil Judge Class, I Indore whereby the petitioners have been directed to furnish the bank guarantee of Rs.3,49,385/-.

2. Brief facts of the case are that the respondent / plaintiff has filed a summary civil proceedings under Order 39 Rule 1 (1) and (2) of CPC, 1908 (for short 'CPC') for recovery of the amount with the averment mentioned

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therein against respondents/defendents No.1 and 2. The respondents / defendants filed an application for granting leave to defend under Order 37 Rule 3(5) of CPC, but learned trial Court has passed the impugned order dated 4.03.2020 and granted leave to defend with imposing a condition that submitting bank guarantee of sum of Rs.3,49,385/-. Hence, the petitioner has filed the present petition before this Court.

3. Learned counsel for the petitioner contended that trial court has imposed condition to furnish bank guarantee, this condition has made impossible to file defence against the plaintiffs case and petitioners are facing grave injustice. The impugned order is perverse and bad in eyes of law.

4. The case of the petitioners covered by the judgment passed by the Hon'ble Apex Court in the case of Nebha Kapoor vs. Jayantilal, AIR 2008 SC 117, Sudin Dilip Talaulikar vs. Polycap Wires Pvt. Ltd. & Ors., AIR 2019 SC 3380, State Bank of Hyderabad vs. Rabo Bank, AIR 2015 SC 3820 and Sify Ltd. vs. First Flight Couriers Ltd., 2008 (4) MPLJ 15Hence, he prays that the impugned order be set aside and grant to leave the defend unconditional.

5. Per contra, learned counsel for the respondent has opposed the petition and prays for its rejection by supporting the impugned order and placing reliance upon the judgment of the Hon'ble Apex Court in the case of Uma Shankar Kamal Narain & Anr. vs. M.D. Overseas Ltd., 2007 (3) MPLJ 293.

6. I have heard, learned counsel for the parties and perused all the relevant documents filed by both the parties.

7. The Hon'ble Apex Court in the case of Sudin Dilip Talaulikar vs. Polycap Wires Pvt. Ltd. & Ors (supra) has held as under :-

13. In Hubtown Limited (supra), this court has laid down the principles which should guide exercise of such discretion as follows :-

"...17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed,

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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 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."

8. In the case of State Bank of Hyderabad vs. Rabo Bank reported in AIR 2015 SC 3820 it has been further held as under :-

15. As regards the entitlement of a defendant to the grant of leave to defend, the law is well settled long back in the year 1949 in Smt. Kiranmoyee Dassi Vs. Dr. J. Chatterjee, AIR 1949 Cal 479, in the form of the following propositions:

"(1) If the defendant satisfies the Court that he has a good

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defence to the claim on its merits, the plaintiff is not entitled to leave to sign the judgment and the defendant is entitled to unconditional leave to defend. (2) If the defendant raised 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.

(3) 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 made it clear that he has a defence, yet, shows such a stage 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.

(4) 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. (5) If the defendant has no defence or the defence isillusory 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."

9. On perusal of the law laid down by the Hon'ble Apex court in the above judgments, this Court is in total agreement with the view taken in the case of Raj Duggal vs. Ramesh Kumar Bansal, reported in 1991 Suppl (1) SCC 191:

(AIR 1990 SC 2218) that leave to defend the summons for judgment shall always be granted to the defendant when there is a triable issue as to the meaning or correctness of the documents on which the claim is based or the alleged facts are of such nature which entitle the defendant to interrogate or

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cross-examine the plaintiff or his witnesses. Therefore, the petitioners are entitled to defence his case and learned trial court has considered all these facts while passing the impugned order.

10. Learned counsel for the respondent also placed reliance upon the judgment of the Apex Court in the case of Uma Shankar Kamal Narain & Anr. (supra), but it is distinguishable from the facts of the present case.

11. In the present case, the entire decreetal amount was not deposited therefore this citation is not applicable in the present case. So far as the condition imposed by the trial Court to furnish the bank guarantee of sum of Rs.3,49,385/- is concerned, it is noteworthy that petitioners are small businessmen and according to plaint the original borrowed amount is Rs.5,50,615/-, which was given in the year 2015, therefore, the reason assigned by the petitioners appears to be bonafide and condition imposed to furnish the bank guarantee appears to be very harsh and tough.

12. Therefore, it will be appropriate to modify the said condition imposed on the petitioners.

13. Considering all the facts and circumstances of the case, this petition is partly allowed and instead of furnishing bank guarantee, the petitioners shall be required to furnish one surety of Rs.3,49,385/-, subject to the satisfaction of the trial Court alongwith personal bond of the said amount.

14. Accordingly, the present petition stands disposed off in the aforesaid terms.

C.c. as per rules.

                                                           (ANIL VERMA)
                                                              JUDGE

SS/-              SHAILESH MAHADEV
                  SUKHDEVE
                  2022.04.23 17:48:26 +05'30'