ORDER

CHANDRA DHARI SINGH, J (Oral)

1. The instant revision petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) has been filed on behalf of petitioner seeking the following reliefs:-

“a) Pass an appropriate order quashing the impugned order (Annexure no. 1) dated 05.01.2022 passed by Ld. Additional District Judge, South District, New Delhi granting unconditional leave to defend to Respondent; or in alternative b) Pass an order imposing condition on Respondent to deposit the entire principal sum together with such interest as the court deems fit on leave to defend to secure the interest of Petitioner in the light of guidelines issued by Hon'ble Apex Court in the case of IDBI Trusteeship Services Ltd v. Hubtown Ltd., 2016 SCC Online SC 1274.

c) Any other order and/or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

2. A conjoint consideration of the material on record reveals that the petitioner/plaintiff filed a suit for recovery of a cumulative amount of Rs. 71,50,000/- against the respondent/defendant under Order XXXVII of the CPC, on the ground that the respondent had approached the petitioner for a loan of Rs. 15,00,000/- and thereafter, of Rs. 40,00,000/-, however, the cheques finally issued by the respondent got dishonoured and the respondent failed to honour the promissory notes executed by him.

3. In the said suit, the respondent preferred an application seeking the leave of the court to defend under Order XXXVII Rule 3(5) of the CPC which was allowed by the Additional District Judge-03, South District, Saket Courts, New Delhi (hereinafter “ADJ” or “Trial Court”) vide order dated 5th January 2022.

4. The petitioner, being aggrieved by the order allowing the leave to defend in favour of the respondent, has preferred the instant petition by invoking Section 115 of the CPC.

5. The learned counsel appearing on behalf of the petitioner/revisionist submitted that the impugned order dated 5th January 2022 allowed the leave to defend in favour of the respondent despite the fact that the respondent failed to bring forth a substantial or legitimate defence or any triable issues in his defence.

6. It is submitted that the loan advanced by the petitioner to the respondent was an isolated business activity between the parties and not a transaction carried out in the ordinary course of business for which she required any license. The learned counsel submitted that the Trial Court failed to consider that the undisputed loan transaction amount of Rs. 55,00,000/- has been duly established by the documentary evidence that was placed before it, including the Bank Statements of the petitioner which show the disbursement of the loan amount, the Promissory Notes of loan amount and the Books of Accounts of the petitioner.

7. It is further submitted that the respondent has raised the issue of maintainability on the ground of limitation before the learned ADJ in his defence, which has no force since the petitioner approached the Trial Court within the statutory period prescribed. i.e., within three years from the date when the payment of interest accrued.

8. The learned counsel for the petitioner argued upon the maintainability of the instant petition and submitted that the grant of leave to defend is a jurisdictional issue which may be adjudicated upon by this Court under Section 115 of the CPC. Reliance has been placed upon the following judgments to give force to the contentions raised on the issue of maintainability and jurisdiction:

a) Wada Arun Asbestos P. Ltd. Vs. Gujarat Water Supply &

Sewerage Board, Civil Appeal No. 7314/2008 dated 16th December 2008 by the Hon’ble Supreme Court.

b) Ashwani Kumar vs. Kalimuddin, 2018 SCC OnLine Del

11003 c) Mange Ram vs. Raj Kumar Yadav, 2018 SCC OnLine De;

10316 d) Netrapal Singh vs. Ravindra Kumar Kalyani, 2019 SCC OnLine Del 9622 e) Kadhirvel vs. Vinod Kumar, 2019 SCC OnLine Del 9057 f) Sripati Singh vs. State of Jharkhand, 2021