1]

Heard finally with the consent of the parties.

2]

This miscellaneous petition has been filed under Article 227 of

Signed by: PANKAJ

PANDEY

Signing time: 07-04-2023

14:17:09

Signature Not Verified

2

the Constitution of India against orders dated 18.02.2022, and

14.12.2022. Vide order dated 18.02.2022, on an application filed by

the defendant under Section 151 of CPC for leave to defend has been

allowed with a direction to the defendant to furnish a security to the

tune of Rs. 2 crores, and vide order dated 14.12.2022 the review of

the said order dated 18.02.2022 has been rejected.

3]

In brief, the facts of the case are that the respondent/plaintiff

has filed a summary suit under Order 37 Rule 1 and 2 of CPC for

recovery of Rs.1,80,20,000/- from the petitioner/defendant. In the

aforesaid suit, an application under Order 38 Rule 1 and 2 of CPC

was also filed by the plaintiff for attachment of the property of the

defendant before judgement. Allowing the aforesaid application, vide

order dated 17.01.2022, the learned Judge of the trial Court has

directed the defendant to maintain the status quo in respect of its

properties and should not alienate the same in any manner.

4]

In the suit, as defendant had become ex-parte, subsequently, an

application under Order 9 Rule 7 of CPC for setting aside the ex-parte

order alongwith an application under Section 151 of CPC for leave to

defend was filed by the defendant and while allowing the application

filed under Order 9 Rule 7 of CPC vide order dated 18.02.2022, a cost

of Rs.500/- was imposed and the defendant was allowed to participate

in the proceedings. So far as the application filed for leave to defend

is concerned, the same has also been allowed by the learned Judge of

the Trial Court by the same order dated 18.02.2022 directing the

defendant to furnish a security of Rs.2 crores and a bond to the effect

Signed by: PANKAJ

PANDEY

Signing time: 07-04-2023

14:17:09

Signature Not Verified

3

that if the decree is passed against him, he shall comply with the same

immediately. The review of the order has also been rejected by the

learned Judge of the trial Court vide order dated 14.12.2022.

5]

Shri V. K. Jain, Senior counsel appearing for the

petitioner/defendant has submitted that the defendant was arrested in

connection with the FIR, which was lodged by the plaintiff and other

persons in the month of February, 2022 and prior to that, the learned

Judge of the trial Court had already passed the order on 17.01.2022

restraining the petitioner from transferring the properties till the final

disposal of the suit and once the defendant was directed not to

alienate the property, there was no reason for the learned Judge of the

trial Court to further impose a condition to furnish a security to the

tune of Rs.2 crores, especially when the petitioner had filed his

written statement through Jail only.

6]

In support of his submission, Shri V. K. Jain, Senior counsel for

the petitioner has also relied upon a decision rendered by the Supreme

Court in the case of IDBI Trusteeship Services Limited Vs.

Hubtown Limited reported as (2017) 1 SCC 568 wherein the

Supreme Court has held that leave to defend can be granted

unconditionally under certain conditions. Reliance is also placed on

another decision rendered by the Supreme Court in the case of State

Bank of Hyderabad Vs. RABO Bank reported as (2015) 10 SCC

521. Thus, it is submitted that there was no occasion for the learned

Judge of the trial Court to impose such onerous condition on the

defendant as the furnishing of security to the tune of Rs.2 crores is

Signed by: PANKAJ

PANDEY

Signing time: 07-04-2023

14:17:09

Signature Not Verified

4

also difficult for the defendant as for that also he is required to incur

substantial expenses. Thus, it is submitted that the impugned orders

be set aside and the defendant be directed to defend th