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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2315 OF 2021.

Uttam Thanmal Bansali

..Petitioner

v/s.

Ayub Mohammed Rafique Shaikh

..Respondent

Ms. Neeta Jain i/b. Alochan Naik for the Petitioner/s.

Mr. Javeed Hussain i/b. Mubashir Hussain i/b. Hussain & Co. for

the Respondent.

CORAM : ANUJA PRABHUDESSAI, J.

DATED : JUNE 30, 2021.

P.C.

1.

The Petitioner herein challenges the order dated 17.03.2021

whereby learned Judge, City Civil Court, Gr. Mumbai has granted

conditional leave to defend the suit, the condition being to deposit

an amount of Rs.17,50,000/- within a period of four weeks.

2.

Heard learned Counsel for the Petitioner and the

Respondent.

3.

Before adverting to the facts, it would be advantageous to

refer to the decision of the Apex Court in IDBI Trusteeship Services

Ltd. vs. Hubtown Ltd., (2017) 1 SCC 568, wherein the Apex Court

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has reviewed the case law pertaining to Summary Suit and has

held thus:

“18. Accordingly, the principles stated in paragraph 8

of Mechelec’

s case will now stand superseded, given

the amendment of O. XXXVII R.3, and the binding

decision of four judges in Milkhiram’

s case shall

apply. Hence the following principles shall be

observed while considering whether to grant leave

to defend a summary suit:

(i) If the defendant satisfies the Court that he has a

substantial defence, that is, a defence that is likely

to succeed, the plaintiff is not entitled to leave to

sign judgment, and the defendant is entitled to

unconditional leave to defend the suit.

(ii) If the defendant raises triable issues indicating

that he has a fair or reasonable defence, although

not a positively good defence, the plaintiff is not

entitled to sign judgment, and the defendant is

ordinarily entitled to unconditional leave to defend.

(iii) The question whether the defence raises a

triable issue or not has to be ascertained by the

court from the pleadings before it and the affidavit

of parties and it is not open to it to call for evidence

at that stage.

(iv) Even if the defendant raises triable issues, if a

doubt is left with the trial Judge about the

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defendant’

s good faith, or the genuineness of the

triable issues, the trial judge may impose conditions

both as to time or mode of trial, as well as payment

into court or furnishing security. Care must be

taken to see that the object of the provisions to

assist expeditious disposal of commercial causes is

not defeated. Care must also be taken to see that

such triable issues are not shut out by unduly severe

orders as to deposit or security.

(v) If the defendant raises a defence which is a

plausible but improbable, the trial judge may

impose conditions as to time or mode of trial as well

as payment into court or furnishing security. As

such a defence does not raise triable issues,

conditions as to deposit or security or both can

extend to the entire principal sum together with

such interest as the court feels the justice of the case

requires.

(vi) If the Defendant has no substantial defence

and/or raises no genuine triable issues, and the

court finds such defence to be frivolous or vexatious,

then leave to defend the suit shall be refused, and

the plaintiff is entitled to judgment forthwith;

(vii) If any part of the amount claimed by the

Plaintiff is admitted by the defendant to be due from

him, leave to defend the suit, (even if triable issues

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or a substantial defence is raised), shall not be

granted unless the amount so admitted to be due is

deposited by the defendant in Court.”

4.

Coming to the facts of the present case, the Petitioner had

filed a suit for recovery of money under Order 37 of CPC. The

case of the Respondent -Plaintiff was that he had advanced to the

Petitioner herein a friendly loan of Rs.35,00,000/- and that the

Petitioner had issued three post dated che