The Single Bench of the Delhi High Court in the case of Alok Gupta vs Krishan Kumar Sarin & Anr.consisting of Justice Prathiba M. Singhobserved that unconditional leave to defend can be granted by the Court only when a substantial defence is raised by the Defendant.
Facts
This revision petition was filed challenging the impugned order vide which unconditional leave to defend was granted to Respondent No.2/Defendant No.2 (“Defendant No.2”).The suit underlying the present revision petition had been filed by the Plaintiff/Petitioner (“Plaintiff”) against the Defendants, who are husband and wifeunder O37CPC, seeking recovery of a sum of Rs.25 lakhs, with pendente lite and future interest at 18% p.a. The suit was decreed against the husband/Defendant No.1. Thereafter, the wife of Defendant No.1 i.e., Defendant No.2, filed a leave to defend application before the Trial Court. This petition arises out of the Trial Court’s order, vide which the same was unconditionally allowed.
Procedural History
The FIR for missing persons was lodged in 2017. When a further status report was called for by the Court, seeking tracking of Defendant No.1, she had refused to give his photograph husband to the police. When the ld. CGSC was asked to obtain the travel history of the Defendants, it showed that Defendant No.1 travelled to various countries/cities between 2001 to 2014. She had also travelled to various countries/cities between 2006 to 2017. One such trip was after she filed the FIR in 2017. So, the grant of unconditional leave to defend would not be tenable and Court directed her to deposit Rs.1.50 lakhs. On the next date, directions were given to ld. Counsel for Defendant No.2 to seek instructions if she would deposit a further sum of Rs. 3.5 lakhs. Then it was submitted that she cannot pay the said further amount.
Contentions Made
Petitioner: The wife cannot claim to have no knowledge of the transactions made on the account, as she was one of the account holders, and the husband and wife are colluding with each other to avoidpayment to the Plaintiff.
Respondent: Defendant No.2 was unaware of the whereabouts of her husband. The amount of Rs.20 lakhs was paid from the joint account of both the husband and the wife, of which she was unaware. Under such circumstances, the Trial Court had granted her an unconditional leave to defend.
Observations of the Court
The Bench did not concur with Defendant No.2 that she was unaware of the whereabouts of her husbandandthat she does not have the means to pay, as she has a joint bank account with her daughter and an FD, with a total amount of over Rs. 3 lakhs, as also the immovable property where she is residing. She has also a travel history between 2006 and 2017 in various countries. Moreover, the payment was made by cheques which were dishonoured, and the wife was a joint bank account holder. By simply claiming ignorance, she cannot be absolved of her liability.Therefore, it was opined that she has the means to satisfy any condition imposed on the grant of leave to defend and lied to the authorities.
Regarding the grant of leave to defend, it was further noted that the grant of unconditional or conditional leave to defend is dependent upon the facts and circumstances of each case. Reliance was placed on B.L. Kashyap and Sons Ltd. v. JMS Steels and Power Corporation & Ors. and Chander Pal Singh v. Shripal Singhto observe that unconditional leave to defend can be granted by the Court only when a substantial defence is raised by the Defendant.
Judgment
The Bench concluded that the leave to defend granted to Defendant No.2 shall be conditional upon her depositing a total sum of Rs.5 lakhs, with the Registrar General of the Court. Out of such amount of Rs. 5 lakhs, Rs.1.5 lakhs was already stated to have been deposited with the same, whichwould remain in an FDR in auto-renewal mode. The deposit of the remaining amount was to be made within 3 months, which would be retained in the same manner. If the said condition was not complied with, the Plaintiff was free to approach the Trial Court. So, the revision petition was disposed of in the above terms.
Case:Alok Gupta vs Krishan Kumar Sarin & Anr.
Citation: C.R.P. 59/2020 & CM APPL.21898/2020
Bench: Justice Prathiba M. Singh
Decided on: 7th July 2022
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