IMPORTANT POINT
Summary suit (Money suit) – Leave to defend cannot be granted where defence put up by defendants appears to be illusory

JUDGMENT

The petitioners have invoked the jurisdiction of this Court under Section 104 of the Constitution of J&K, which is in pari materia with Article 227 of the Constitution of India, for challenging order dated 30.08.2018 passed by learned Additional District Judge, Srinagar, in a suit filed by respondent against the them. By virtue of the impugned order, the petitioners (hereinafter referred to as the defendants) have been granted conditional leave to defend the suit filed by the respondent (hereinafter referred to as the plaintiff) and they have been directed to deposit an amount of Rs.11,50,000/ in the Court or to furnish cash security in the shape of bank guarantee for the aforesaid amount.

2. The record would reveal that the plaintiff has filed a suit for recovery of Rs.12.00 lacs from the defendants under the provisions of Order 37 of the Civil Procedure Code. It is the case of the plaintiff that defendant No.1 (petitioner No.1 herein) approached him and asked him to invest money in setting up of a poultry farm for which defendant No.1 was to provide the land. According to the plaintiff, he paid an aggregate amount of Rs.12.00 lacs to the defendants out of which an amount of Rs.9.70/ lacs was paid in cash to defendant No.1 whereas an amount of Rs.2.30 lacs was transferred into the accounts of defendant No.2 and defendant No.3, who was later on deleted from the array of defendants. The plaintiff further submitted that defendant No.1 executed a promissory note for an amount of Rs.12.00 lacs as guarantee. According to the plaintiff, he asked the defendants to execute partnership deed for the purpose of setting up of poultry business but they failed to do so. It is further alleged that the defendants failed to adhere to the agreed terms and conditions and the poultry farm was not set up nor they returned the money advanced by the plaintiff.

3. It appears that the plaintiff has filed the suit as a ‘pauper/indigent person’ and permission to file the suit as an ‘indigent person’ was granted by the trial court vide order dated 30.01.2018 after holding enquiry through Tehsildar concerned, whereafter summons in the prescribed form were issued to the defendants including the petitioners herein, who filed an application for leave to defend the suit in terms of sub-rule (5) of Rule 3 of Order 37 of the CPC.

4. In their application, the defendants submitted that even as per the case of plaintiff, defendant No.2 has not executed any document that would warrant filing of a suit under Order 37 of the CPC as he is neither alleged to have executed any hundi or promissory note nor he is alleged to have executed any written agreement etc. It was further contended that defendant No.2 has neither issued any hundi nor has he executed the promissory note on the basis of which the suit has been filed by the plaintiff. The defendants went on to contend that the suit has been filed for recovery of Rs.12.00 lacs but the promissory note, on the basis of which the suit has been filed, is only for an amount of Rs.10.00 lacs, therefore, the suit under the provisions of Order 37 of the CPC is not maintainable. It has been further contended that if contention of the plaintiff that he had advanced a sum of Rs.9.70 lacs to defendant No.1, is accepted, then there was no occasion for the said defendant to execute promissory note for an amount of Rs.12.00 lacs, as has been claimed in the plaint. The defendants have also objected to the grant of leave to the plaintiff to file suit as an ‘indigent person’ on the ground that the plaintiff earns sufficient income for paying the court fees.

5. The learned trial court, after hearing the parties and considering the defence put up by the defendants in their application for leave to defend, came to the conclusion that the plea raised by the defendants that they have not executed the hundi and that the same is fabricated, is illusory and not real. According to the learned trial court, the application seeking leave t