Partly allowed¶23

Rajaram Baburao Chaure v. Hariram Baburao Ukarle

Bombay HC6 Feb 2024WP/861/2024

Case brief

AI extract

What is this about?

Conditional leave to defend summary suit; deposit condition of Rs.5 lakh upheld; defence held illusory, sham and practically moonshine; dishonoured cheque prima facie towards liability; District Judge Latur order sustained; time to deposit extended by two months; written statement within one month; Aurangabad Bench; 06/02/2024.

What did the court decide?

Substantive challenge to the conditional leave order rejected and the District Judge's order upheld; however, the time to deposit Rs. 5,00,000 was extended by two months from 06/02/2024, and the defendant was directed to file his written statement within one month. ¶23

Rajaram Baburao Chaure Vs Hariram Baburao Ukarle — Bombay HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the defendant in Summary Civil Suit No. 4/2022 was entitled to unconditional leave to defend, or whether the order granting leave subject to deposit of Rs. 5,00,000 was sustainable.

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Ratio / Principle

The defence set up by the defendant is illusory, sham and practically moonshine; the defendant does not have a good defence.

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Key takeaways

The cheque issued by the defendant prima facie appears to be towards his liability.ratio¶23
The Trial Court rightly put the petitioner on terms by directing deposit of Rs.5,00,000; the impugned order cannot be faulted.ratio¶23
Time to deposit Rs.5,00,000 is extended by two months from the date of the order (06/02/2024), and the defendant shall file his written statement within one month.ratio

Detailed headnote1 paragraphs

Writ Petition No. 861 of 2024 decided on 06/02/2024 by Arun R. Pedneker, J. (Aurangabad Bench, High Court at Bombay, Appellate Side). The petitioner, defendant in Summary Civil Suit No. 4/2022, challenged the District Judge, Latur's order dated 23.11.2023 (application below Exh. 20) granting conditional leave to defend a recovery suit of Rs.15,15,392 (cheque amount Rs.9,93,700 plus interest Rs.5,21,692) subject to deposit of Rs.5,00,000 within two months. The suit was founded on a development agreement dated 16.3.2017 and a cheque dishonoured for insufficiency of funds. The defendant's defences were limitation, cancellation of the agreement, and that signed cheques had been taken before commencement of work; the plaintiff's say (Exh. 25) was supported by affidavits of Dhondiram Chavan, Mohan Chavan and purchaser Archana Male. The High Court held the defence to be illusory, sham and practically moonshine, observed that the cheque prima facie appeared to be towards the defendant's liability, and upheld the deposit condition as a proper exercise of discretion, extending the time to deposit by two months from the date of the order and directing the written statement to be filed within one month.

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2024:BHC-AUG:2565

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WP 861/24

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO. 861 OF 2024

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Rajaram s/o. Baburao Chaure, Age 41 yrs., Occu. Business, R/o. Flat No. 304, Bride Arcade, Phase-I, behind SBH Colony, Keshav Nagar, Latur, Tq. & Dist. Latur. ....Petitioner

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Versus

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Hariram s/o. Baburao Ukarle, Age 40 yrs, Occu. Business, R/o. Flat No. 104, Bridb Arcade, Phase-II, Behind SBH Colony, Keshav Nagar, Latur, Tq. & Dist. Latur. ....Respondent

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… Mr. P.P. More, Advocate for the petitioner. Mr. V. Valse h/f. Mr. T.M. Venjane, Advocate for respondent.

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CORAM : ARUN R. PEDNEKER, J. DATE : 06/02/2024.

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ORDER :

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By way of present writ petition, the petitioner is challenging the order dated 23.11.2023 passed by the learned District Judge, Latur on application below Exh. 20 in Summary Civil Suit No. 4/2022, by which the defendant/ petitioner herein is granted leave to defend the suit, subject to deposit of Rs. 5,00,000/ (Rs. Five lakh) within two months from the date of order.

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Briefly, the facts of the case are as under :-

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Plaintiff/respondent herein filed a suit for recovery of cheque amount of Rs.9,93,700/- along with interest amount of Rs.5,21,692/- and as such, plaintiff has claimed total amount of Rs.15,15,392/- from the defendant. It is the case of the plaintiff that on 16.3.2017 contract was executed between

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WP 861/24

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the plaintiff and the defendant, one Rajkumar Pandit executed development agreement with the landlord Rupla Gopa Chavan and as per the contract, the land of Rupla Chavan was developed and all the plots were sold to different persons. All the accounts and profit was in the custody of the defendant and after settling the account, the outstanding amount of Rs.9,93,700/- was with the defendant. The defendant agreed to pay said amount and issued cheque for Rs.9,93,700/-. However, the said cheque was dishonoured for insufficient funds in the account of defendant and thus, the plaintiff filed the suit.

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The defendant has filed application below Exh. 20, seeking unconditional permission to leave to defend the suit. Defence was raised that suit is time barred. Defendant agreed that agreement dated 16.3.2017 was executed, however, the said agreement was cancelled and therefore, there is no question of sale of plots and sharing of profit and therefore, defendant is not liable to pay the amount of Rs. 9,93,700/- to the plaintiff. It is the case of the defendant that before staring of work, three signed cheques were taken from the defendant by the plaintiff and the cheque in question was not issued towards the lawful enforceable liability.

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The contention of the defendant was refuted by the plaintiff by filing his say at Exh. 25. The case of the plaintiff was also supported by Dhondiram Chavan, son of the landlord and he has stated in his affidavit that plaintiff, defendant and one Rajkumar Pandit have sold the plots as per the agreement dated 16.3.2017. Another witness Mohan Chavan has also supported the case of the plaintiff. One purchaser namely Archana Male has also filed an affidavit that she has purchased the plot from original landlord, plaintiff, defendant and Rajkumar Pandit and the sale deed executed in

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WP 861/24

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favour of the said witness is also produced on record. Thus, the plaintiff has contended that the story of the defendant that agreement was cancelled is false and the defendant has no legal defence and prayed for rejection of application for leave to defend filed by the defendant.

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After considering the evidence, the Trial Court granted leave to defend the suit to the defendant, subject to deposit of Rs.5,00,000/- as against the due amount of Rs. 15,15,392. In the instant case, it appears that the defendant has set up the defence which is illusory, sham and practically moonshine. It does not appear that defendant has good defence. Moreso, he has issued a cheque, which prima facie appears to be towards his liability. As such, the Trial Court has rightly put the petitioner herein on terms by directing him to deposit amount of Rs.5,00,000/-. As such, the order of the Trial Court directing the petitioner to deposit Rs.5,00,000/cannot be faulted. However, the time to deposit is extended by two months from today. The defendant shall file his written statement within one month.

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[ARUN R. PEDNEKER J.]

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SSC/

Rajaram Baburao Chaure v. Hariram Baburao Ukarle

Case brief

What is this about?

What did the court decide?

Rajaram Baburao Chaure v. Hariram Baburao Ukarle

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

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