IA No.7043/2011

1. By this application filed under Order XXXVII Rule 3 of the Code of Civil Procedure, 1908 the defendant no.1 seeks grant of leave to defend the present suit.

2. The plaintiff has filed the present suit under Order XXXVII of the Code of Civil Procedure for the recovery of an amount of Rs. 60,85,000/-. Initially, the suit was filed by the plaintiff against defendant no. 1 to 3 and later vide order dated 21.3.2011, the names of defendant no. 2 and 3 were directed to be deleted at the instance of the plaintiff, the same being unnecessary parties to the present suit. Earlier this court vide order dated 21.12.2010 had passed a decree for recovery of an amount of Rs. 60,85,000/-with costs and pendente lite and future interest @ 12 % p.a. against the defendant no.1 as the defendant no.1 had failed to enter appearance as per the mandatory requirement of Order XXXVII Rule 2(3) of the Code of Civil Procedure. The said order dated 21.12.2010 was later on set aside by this court vide order dated 21.3.2011 on the application moved by the defendant no.1 seeking setting aside of the ex-parte order dated 21.12.2010.

3. The case as set up by the plaintiff in the plaint is that he has been running a printing press under the name and style of M/s. Kohli Printers at Lucknow. It is the case of the plaintiff that he met the defendant no.1 at a hotel in New Delhi on 7.7.2007 and in the said meeting the defendant no.1 had represented that he was in the business of selling and/or importing of second hand offset printing machines and spare parts in Delhi. Thereafter, the defendant no.1 had also introduced him to defendant no.2, (his father) and defendant no.3 (brother) and all of them represented to the plaintiff that they have a very strong base in Czech Republic and through their good contacts they have been procuring second hand and even new offset machines from the said country. The plaintiff disclosed his budget for importing the offset printing machines and the defendants had assured the plaintiff that they would not have any difficulty in supplying the required offset machines from Czech Republic in a time bound manner. The deal was finalized after negotiation for Rs. 50 lacs and against the said amount the plaintiff had paid a sum of Rs. 3 lacs on 13.8.2007 and thereafter an amount of Rs. 15 lacs on 19.10.2007 and both the said payments were duly received by the defendant No.1 in his own hand writing in the transaction sheet. It is also the case of the plaintiff that on the advise of the defendants no. 1 and 2 the plaintiff had applied for a certificate of Importer-Exporter Code (IEC) which was issued to the plaintiff on 21.8.2007 for the import of the said printing machine. It is also the case of the plaintiff that he had applied for a loan of Rs.25 lacs from the Union Bank of India and for which the defendant no.1 had sent an invoice although for a lesser amount of Rs.25 lacs so as to facilitate the plaintiff to obtain the loan of the said amount from the bank. The said loan amount was also sanctioned by the Union Bank of India in favour of the plaintiff and the plaintiff gave two cheques for a sum of Rs. 18 lacs and Rs.7 lacs in the name of defendants’ firm M/s Format International and both the said cheques were also encashed by the defendant no.1. As per the case of the plaintiff, the defendant no.1 informed the plaintiff about arrival of the machine at Mumbai Port and that it would take about two days time for the machine to reach Lucknow. The plaintiff was also told to arrange the remaining amount of Rs. 7 lacs and in response the plaintiff told the defendant no.1 that once the machine reaches Lucknow he would be ready with the said balance amount. Later on the plaintiff came to know that no such machine was imported by the defendant no.1 and he was informed by one Mr. Vijay Jain who was in the same business that the plaintiff was duped of the amount already paid by him to the defendant no.1. The plaintiff lodged an