1989 Supreme(MP) 533

IN THE HIGH COURT OF MADHYA PRADESH
R.C. Lahoti, J.
Kailash Chand - Appellant
Vs.
Smt. Usha Avtade - Respondent
C.R. No. 145 of 1989 (G)
Decided On : 03-11-1989

Headnote:Civil Procedure Code, 1908 – O.37, R.3(5) – substantial question of law raised – condition of depositing whole amount should not be imposed.

        Short Note

       The petitioner applied for leave to defend. He submitted inter alia that an amount of Rs. 8,000/ – over and above the amount admitted by the non – petitioner in her plaint, was repaid by the petitioner to the non – petitioner; that the principal amount was repayable in instalment of Rs. 1,000/ – each; that the plaintiff was a money lender and had not complied with the provisions of M.P. Money Lenders Act, 1934 apart from the fact that she did not hold a money lender's licence.

       2. The plaintiff filed several documents relied on by her along with plaint. The defendant/petitioner too filed copy of an affidavit dated 18.8.87 sworn in by the plaintiff/non – petitioner wherein she had stated that the amount of Rs.20,000/ – was agreed to be repayable in instalments of Rs. 1,000/ – per month.

       3. Having perused the documents and having heard the parties, the trial Court granted leave to defend to the petitioner subject to the condition that an amount of Rs. 20,000/ – was deposited in cash by him in the Court within 15 days of the order.

       4. Held: Leave to defend has been rightly granted to the petitioner. However, the discretion exercised by tile trial Court in the matter of imposing terms and conditions, specially the condition as to deposit in cash of an amount of Rs, – 20,000/ – , cannot be said to have been properly exercised by the trial Court. The record of the case shows that the petitioner admits to have borrowed the amount of Rs. 20,000/ – . In view of the pica taken by the petitioner duly supported by a copy of the affidavit dated 18.8.87 filed by the petitioner, the amount was payable in instalments of Rs. 1,000/ – per month. The suit has been filed on 11.7.88. Assuming that the instalments were payable with effect from 14.3.1987, by 11.7.88, only 16 instalments had fallen due. Of these Rs. 8,000/ – were pleaded to have been repaid towards the principal money. To the extent of Rs. 4,000/ – , the suit was premature. As to the amount of interest and costs, the plea that the plaintiff was a money – lender but a defaulter in the matter of complying with the provisions of the Money Lenders Act, was a substantial one. The trial Court was not, therefore, justified in insisting on a cash deposit of Rs. 20,000/ – as a condition precedent to the grant of leave to defend.

       5. Having considered all the facts and circumstances of the case, in the opinion of this Court, leave to defend deserves to be granted to the defendant/petitioner on the following terms and conditions:

       (i) The amount of Rs. 8,000/ – shall be deposited by the petitioner is the Court.

       (ii) The defendant/petitioner shall furnish a surety in an amount of Rs.8,000/ – only for satisfaction of the decretal amount to that extent.

       (iii) As to the remaining amount, he shall have unconditional leave to defend.

       (iv) Cash deposit and surety within a period of two months from today.

       The abovesaid order shall supersede the order of the trial Court.

       Revision partly allowed.