2024:BHC-NAG:2927 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

DATE : 07/03/2024 ORAL JUDGMENT

1. Heard Mr. U.K. Bisen, learned counsel for the petitioners and Mr. N.B. Kalwaghe, learned counsel for the respondent. Rule. Rule made returnable forthwith. Heard learned counsel for the parties with consent for final disposal.

2. The petitioners, who are the defendants in a summary suit filed by the respondent for recovery of money, are challenging the order dated 01/04/2022 passed below Exhs.12 and 13 and the order dated 16/12/2022 passed below Exh.38 on various grounds as mentioned in the petition.

3. The respondent-plaintiff filed summary proceedings before the learned Trial Court under Order XXXVII Rule 1 (1) of the Code of Civil Procedure for the purpose of recovery of money, wherein it is claimed that the plaintiff is entitled to recover an amount of Rs.25,40,001/- from the defendants in connection with the transaction and two cheques issued by the defendant no.2 which were dishonoured. The respondent-plaintiff applied for summons for judgment as provided under the said provision of Order XXXVII of the Code of Civil Procedure and accordingly the summons was issued to the petitioners-defendants.

4. An application was filed by the petitioners for leave to defend by taking recourse to Order XXXVII Rule 3 (5) of the Code of Civil Procedure. The learned Trial Court allowed such application filed by the petitioners separately but by common order dated 01/04/2022 while granting leave to defend the suit, the learned Trial Court directed the defendants to deposit an amount of Rs.15,00,000/- in the Court within a period of one month, failing which the suit was directed to be proceeded further.

5. It is an admitted fact that the defendants failed to deposit such amount, however, both the defendants filed another application dated 30/04/2022 for modification of the said order. The learned Trial Court after hearing the parties dismissed the application for modification vide order dated 19/07/2022 passed below Exh.19.

6. Similarly, the plaintiff and his witnesses stepped into the witness box to prove their case. However, the cross-examination on part of the defendants was closed on the ground that the Advocate for the defendants was absent. An application for permission to cross-examine the plaintiff and his witnesses was rejected by the Court vide order dated 16/12/2022 which is below Exh.38.

7. The defendants-petitioners are now challenging the order dated 01/04/2022 below Exhs.12 and 13 and the order dated

16/12/2022 below Exh.38 in the present petition.

8. The learned counsel for the petitioners would submit that first of all the suit is filed against the two defendants claiming that they are the proprietors of the same firm. He would submit that the cheques are issued only by the defendant no.2, whereas the defendant no.1, who is the father of the defendant no.2, has no connection with such transactions and cheques. He would submit that the summary suit filed against the defendant no.1 is totally misconceived and therefore, directions to defendant no.1 to deposit amount of Rs.15,00,000/- to defend the suit requires interference.

9. The learned counsel for the petitioners would further submit that the amount mentioned in the cheque is around 21