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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Chander Mohan – Appellant
Versus
Tejinder Singh – Respondent
RFA 178 of 2021 & C.M. APPL. 11186 of 2021 & RFA 179 of 2021 & C.M. APPL. 11195 of 2021
Decided On : 16-02-2023
Defendant - Recovery of Loan Amount - Order 37 CPC - Summary Suit - [Order 37 CPC] - The court examined the contentious issues raised by the parties and granted conditional leave to defend based on the defendant's disclosure of a fair and reasonable defense. The defendant's contradictory statements and failure to deny receipt of the loan amounts led to the imposition of conditions for leave to defend. The trial court's decision was in line with the principles established in IDBI Trusteeship Services Limited v. Hubtown Limited and Sudin Dilip Talaulikar v. Polycap Wires Private Limited, ensuring a delicate balance between the respective rights and expeditious disposal of the dispute.
Fact of the Case:
The suits were filed for recovery of loan amounts under Order 37 CPC. The defendant raised objections to the maintainability of the suits, alleging forgery and fabrication of documents. The trial court granted conditional leave to defend based on the defendant's disclosure of a fair and reasonable defense.
Finding of the Court:
The trial court found that the defendant's contradictory statements and failure to deny receipt of the loan amounts led to the imposition of conditions for leave to defend. The court's decision was in line with the principles established in IDBI Trusteeship Services Limited v. Hubtown Limited and Sudin Dilip Talaulikar v. Polycap Wires Private Limited, ensuring a delicate balance between the respective rights and expeditious disposal of the dispute.
Issues: The main issues revolved around the defendant's disclosure of a fair and reasonable defense, the imposition of conditions for leave to defend, and the financial capacity of the parties involved.
Ratio Decidendi: The court's decision was based on the defendant's disclosure of a fair and reasonable defense, the delicate balance between the respective rights, and the expeditious disposal of the dispute.
Final Decision: The appeals were dismissed, and the trial court's decision to grant conditional leave to defend was upheld.
JUDGMENT
Jyoti Singh, J.
1. Present appeals have been filed assailing the impugned judgments and decrees dated 20.09.2019 as well as the orders dated 21.05.2019 whereby conditional leave to defend was granted to the Appellant. Appellant has prayed for a direction that unconditional leave to defend be granted to them to enable them to contest the suits. Since the parties have raised common contentions in both the appeals and there is a similitude of issues involved, both appeals were heard together and are being decided by this common judgment. The Appellant before this Court was the Defendant before the Trial Court and the Respondents were the Plaintiffs, respectively in the two suits and the parties are hereinafter referred to by their litigating status before this Court.
2. The suits out of which the present appeals arise were filed for recovery of certain sums of money under Order 37 CPC. Respondents filed applications on 23.05.2016 for passing decree under Order 37 Rule 2(3) CPC. On 12.09.2016, Appellant filed his memo of appearance and vakalatnama in accordance with the provisions of Order 37 CPC. Applications were filed by the Respondents under Order 37 Rule 4 CPC on 19.09.2016 for issuance of summons for judgment and on 29.09.2016 leave to defend applications were filed by the Appellant. Replies were filed by the Respondents to the leave to defend application on 01.10.2016.
3. Vide the impugned orders dated 21.05.2019 the Trial Court granted conditional leave to the Appellant to defend the suit upon payment of Rs.10,00,000/- and Rs.15,00,000/-, respectively by way of fixed deposits. Review applications were filed by the Appellant challenging the conditions imposed by the Trial Court which were dismissed on 19.09.2019 and the impugned decrees were thereafter passed by the Trial Court on 20.09.2019 upon failure of the Appellant to comply with the conditions imposed while granting leave to defend.
RFA No. 178/2021
(A) It is the case of the Respondent that he filed a summary suit for recovery of an amount of Rs.39,92,900/- along with pendente lite and future interest. It was the case of the Respondent that he had advanced a loan of Rs.27,00,000/- to the Appellant on 20.03.2014 as Appellant had approached him for money to meet certain requirements of his business. The money was advanced on the assurance of the Appellant that he would return the money within one month. An agreement was executed between the parties whereby Appellant agreed to pay interest at the rate of 1.5% p.m., from 20.03.2014 and on 21.04.2014, Appellant handed over the security cheques. Appellant again approached the Respondent on 30.12.2014 seeking further loan of Rs.3,00,000/-, which was again advanced by the Respondent and in order to gain trust of the Respondent, Appellant also executed an agreement to sell dated 30.12.2014 agreeing that in the event of failure of repayment, Appellant shall transfer the ownership right of property bearing half portion of basement at A-131, Vishal Enclave, Rajouri Garden, Delhi which was under the exclusive ownership and possession of the Appellant.
(B) It was averred in the plaint that on 19.09.2015 Appellant requested the Respondent to give further time of 03 months to repay the loan and issue post-dated cheques towards principal amount along with interest bearing cheque no. 806343 dated 20.12.2015, for a total amount of Rs.37,67,900/-. Another cheque no. 806342 dated 20.12.2015 for a sum of Rs.1,35,000/- was also issued towards interest from 20.09.2015 to 19.12.2015. As per the Respondent, a legal notice dated 30.12.2015 was served on the Appellant intimating that the cheques shall be encashed but there was no response. Finally, the Respondent presented the aforementioned cheques for encashment, however, the same were returned with the remarks 'payment stopped by drawer'. Since the Appellant failed to pay back the loan amounts, the Respondent filed a suit being CS No. 11274/2016.
(C) Case of the Appellant before the
The main legal point established in the judgment is the court's discretion to grant conditional leave to defend based on the defendant's disclosure of a fair and reasonable defense, ensuring a delica....
A defendant in a summary suit is entitled to leave to defend if they raise plausible triable issues, even if the defense is not strong.
The Defendant's defense must be substantial and likely to succeed to be entitled to leave to defend. A defense found to be moonshine, vexatious, and frivolous does not entitle the Defendant to leave ....
Certified copies are admissible in summary suits, and defenses that do not raise triable issues can be dismissed without leave to defend.
In a summary suit, if defendant discloses such facts of a prima facie fair and reasonable defence, court may grant unconditional leave to defend.
If the defendant raises a substantial defence or triable issues, they are entitled to unconditional leave to defend, and a full-fledged trial may be necessary to adjudicate disputed facts.
A defendant raising a triable issue is entitled to unconditional leave to defend in a summary suit, and courts should avoid imposing harsh conditions that may hinder the defendant's ability to contes....
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