Delhi District Court
Sh. Amit Tyagi vs Mr. Santosh Kumar on 29 May, 2014
IN THE COURT OF MS BHAWANI SHARMA, JSCC, ASCJ, GJ
(SHAHDARA) KARKARDOOMA, DELHI.
Civil Suit No: 403/12
Sh. Amit Tyagi
S/o Sh. N.S. Tyagi
At D-354, 1st Floor,
Laxmi Nagar, Vikas Marg,
Delhi-110092. ..... Plaintiff
Vs.
Mr. Santosh Kumar
S/o Late Shideshwar Prasad
At 3695, Hotel Millenium
Dariba Pan, Paharganj, New Delhi-110055 ..... Defendants
ORDER ON APPLICATION SEEKING LEAVE TO DEFEND
1.Vide this order I shall dispose of the application dated 12.03.2013 under Order 37 Rule 3(5) of Code of Civil Procedure read with Section 151 for grant of leave to defend on behalf of the Defendant.
2. The Plaintiff has filed the suit for recovery of Rs. 3,00,000/- against the Defendant under the provisions of Order 37 of Code of Civil Procedure with the averments that on 14.5.2012, the defendant approached the plaintiff and requested for a friendly loan of Rs. 3,00,000/- for a period of six months, and considering the financial difficulty of the defendant, the plaintiff advanced a friendly loan of Rs. 3,00000/- to the defendant in cash. The Defendant in discharge of his liability to repay the said loan amount, the defendant had executed one pronote dated dated 14.05.2012, in favour of the plaintiff. When, the Plaintiff approached the defendant for payment, the defendant failed to CS No. 403/12 Page 1 of 6 repay the loan. It is the case of the Plaintiff that the Plaintiff has been repeatedly requesting the defendant to repay the said loan amount but the defendant is avoiding the same on one pretext or the other. the plaintiff issued a legal notice dated 2.11.2012 to the defendant by way of Regd. A. D. thereby calling upon the defendant to pay the due amount with interest within 15 days from the date of receipt of the said notice otherwise the plaintiff shall take/institute appropriate legal proceedings against the defendant. The said notice was duly served but the defendant failed to comply with the requisites of said notice rather according to the Plaintiff, the Defendant sent a false and frivolous reply dated 07.11.2012 . In these and facts and circumstances the Plaintiff has filed the present suit.
3. In a summary suit, to file the written statement and defend the suit is not the right of the Defendant, but the Defendant has to seek the leave of the court to defend the suit, which the Defendant vide the present application has sought. As to what ought to be criteria for consideration by the court to decide if the leave be granted or not was very pithily stated by Hon'ble Calcutta High Court in Smt. Kiranmoyee Dassi v. Dr. J. Chatterjee, 1949 AIR (Calcutta) 479 in para 24 which has been relied upon in catena of judgments even by the Hon'ble Supreme Court as;
(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.
CS No. 403/12 Page 2 of 6(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 shews 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 CS No. 403/12 Page 3 of 6 defence is illusory or sham or practically moon shine 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.
4. The grounds which have been agitated by the Defendant in the present application as grounds for granting leave to defend are that the defendant has never met the Plaintiff and does not know him at all so in any connection question of friendship does not arise at all no details regarding his friendship with the defendant filed by the plaintiff. The plaintiff is stated to have concealed various material facts. That the defendant has not given any alleged loan to the plaintiff as per his own statement as he has not filed any proof /receipt alongwith the suit nor any date has been mentioned on which he has given the cash to the defendant and from where he has arranged the amount that the document filed by the plaintiff is forged and fabricated and the plaintiff is seeking a legal opinion to file a case of forgery and cheating against the plaintiff that defendant has not executed any promissory note in this regard. That it is stated that the allegation of meeting between the plaintiff and defendant on 18.10.2012 and 01.11.2012 is a nothing but bundle of lies. The defendant has duly replied the legal notice sent by the plaintiff in detail. As per Defendant, the suit of the Plaintiff is a false case.
CS No. 403/12 Page 4 of 65. I have heard the arguments and perused the record.
6. The suit of the plaintiff is based on a document alleged to be a promissory note which in fact is not a promissory note as the same is not duly stamped. The signature on this document dated 14.5.2012 has been disputed by the defendant. The defendant stated that one of the acquaintances of the plaintiff namely Sh. B.B. Tyagi who is an advocate by profession had been once the advocate of the defendant and he happened to appear in matter of defendant's case in Chennai. The defendant arranged for tickets of his previous counsel Sh. B.B. Tyagi [acquaintance of the plaintiff] which were duly sent by him to the mail ID of his previous counsel and this was misused by the plaintiff. No explanation has come from the side of the Plaintiff as to why the air tickets were sent to the mail ID of one Sh. B.B. Tyagi and not to the plaintiff's mail ID. Further the perusal of the signature on the alleged promissory note dated 14.5.2012 and on the application dated 12.03.2013 which is signed by the defendant, through naked shows that both the are not written/signed by the same person as handwriting is not same. There is no averments on this aspect from the side of the Plaintiff which ought to have been. It would be only after trial that the veracity of what the Defendant has stated in the affidavit would be proved. The court is of the opinion that the factual matrix of the case of the Defendant falls in sub-para (c) of para 24 of the judgment in Smt. Kiranmoyee Dassi (supra) that is from the deposition of the Defendant in the affidavit, it is not positively and immediately clear that the Defendant has a defence as the factum of friendship as well as signature of the alleged promissory note are disputed. But the state of facts between the Plaintiff and the Defendant are such that if matter goes for trial the Plaintiff may be able to CS No. 403/12 Page 5 of 6 establish a defence to the Plaintiff's claim.
7. In view of the above discussion, present application is allowed and the Defendant is hereby given unconditional leave to defend the suit of the Plaintiff.
8. Application allowed.
Announced in the open (Bhawani Sharma)
Court on 29.05.2014 JSCC/ASCJ/GJ (Shahdara)
(Order contains 6 pages.) Karkardooma Courts,Delhi.
CS No. 403/12 Page 6 of 6