Misleading statements in court, lack of evidence for loan claims, warrant conditions on leave to defend; material evidence required for such defenses.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

CM APPL. 10311/2021 (for clarification/ modification)

2. The present application arises out of the revision petition that was filed by the Petitioner/Plaintiff (hereinafter "Plaintiff") challenging the impugned order dated 18th August, 2020, by which the Plaintiff's suit instituted under Order XXXVII of CPC had been converted into an ordinary suit, and unconditional leave to defend had been granted to the Defendant. Vide order dated 15th December, 2020, this Court was considering the question as to whether an unconditional leave to defend ought to be granted or any conditions were to be imposed in respect of the same. On the said date, the Trial Court's order dated 18th August, 2020 was substantially modified, and this Court has observed as under:

"13. In support of the plea of the Defendant that he gave a loan to the Plaintiff in 2013-14, which was being given on a continuous basis of various amounts from time to time, there is not a single document that has been placed on record. It is highly improbable that any party which is giving huge sums of money would not file a single receipt or promissory note and merely proceed to lend money on some oral arrangement. Even otherwise, a perusal of the leave to defend does not inspire confidence.

14. Considering the fact that the amount, which was transferred by the Plaintiff to the Defendant was through proper banking channels for which clear evidence has been placed on record, the suit under Order XXXVII CPC would be maintainable as it is for a liquidated sum. The onus would be on the Defendant to show as to why the leave to defend should be granted.

15. At this stage, since Id. counsel for the Defendant clearly concedes that no document has been placed on record in support of the plea that a loan was given to the Plaintiff, allowing unconditional leave to defend would not be in accordance with law. At best, since the written statement has now been filed and the suit is proceeding further, this Court is of the opinion that the suit under Order XXXVII CPC is maintainable but some conditions be imposed upon the Defendant to permit him to defend his case.

16. Accordingly, it is directed that the Defendant shall furnish either a Bank Guarantee or any other security to the tune of Rs.10 lakhs, to the satisfaction of the Trial Court, within 8 weeks. Subject to the said condition being fulfilled, the written statement shall be taken on record and trial in the suit shall continue."

3. This is an application filed on behalf of the Respondent/Defendant (hereinafter "Defendant") seeking modification of the order dated 15th December, 2020 passed by this Court, to the extent that the said order records the submission of the ld. Counsel for the Defendant, that the "written statement has now been filed". It is the case of the Defendant that the said statement was inadvertently made. However, Ld. Counsel for the Defendant submits that the security of Rs. 10,00,000/- has been furnished, in compliance of order dated 15th December, 2020.

4. On the last date, ld. Counsel was directed to place on record the complete order sheet of the Trial Court, post the disposal of the present petition. The said order sheet has now been handed over by ld. Counsel for the Plaintiff. A perusal of the orders dated 27th February, 2021 and 6th March, 2021 passed by the Trial Court in CS No.791/2018 titled "Surender Kumar v. Manoj Kumar", shows that the statement made on behalf of the Defendant on 15th December, 2020 was completely misleading and incorrect. The relevant orders of the Trial Court dated 27th February, 2021 and 6th March, 2021, are extracted below:

Order dated 27th February, 2021-