Allowed

Shailendra Arora v. Laxmi Jingar

Rajasthan HC22 Feb 2024CR/243/2013

Case brief

AI extract

What is this about?

High Court allowed revision petition against rejection of leave to defend under Order 37 CPC. Court held defendant raised a triable issue of doubtful genuineness. Leave to defend granted conditionally upon depositing Rs.1 lakh with trial court within three weeks; trial to conclude within six months.

What did the court decide?

Revision allowed; impugned order set aside; leave to defend granted conditionally upon deposit of Rs.1 lakh; trial concluded within six months.

Shailendra Arora Vs Laxmi Jingar — Contract and Commercial Disputes | Rajasthan HC (2024)

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[2024:RJ-JD:9125]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 243/2013

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Shailendra Arora S/o Shri Krishan Gopal Arora, aged 35 years, R/o Laxmi Nagar, Barmer.

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----Petitioner

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Versus

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Laxmi Jingar D/o Shri Hukama Ram, aged 50 years, by caste Jingar, R/o Mahaveer Nagar, Barmer.

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----Respondent

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For Petitioner(s) : Mr. Rakesh Arora For Respondent(s) : Ms. Akshiti Singhvi

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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22/02/2024

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The present revision petition has been preferred against the order dated 31.10.2013 passed by the Additional District Judge, Barmer in Civil Original Suit No.101/2010 whereby an application under Order 37 Rule 3(5) read with Section 151 of Code of Civil Procedure as preferred by the petitioner defendant with a prayer for grant of leave to defend, has been rejected.

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Learned counsel for the respondent, at the inception, raised a preliminary objection that the present revision petition would not be maintainable in terms of the amended provision of Section 115 of the Code of Civil Procedure. However, she did not press the said ground for the reason that the revision petition pertains to the year 2013 and dismissal of the same after a period of 10 years on the ground of maintainability would not be in the interest of the respondent too.

[2024:RJ-JD:9125]

[CR-243/2013]

(2 of 6)

In view of the ground having not been pressed by learned counsel for the respondent and further in view of the fact that the suit in question pertains to the year 2010 and the order impugned pertains to the year 2013, rejection of the revision petition on the mere ground of maintainability would not be in the interest of justice, this Court proceeds on to hear the revision petition finally.

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The facts of the case are that a suit for recovery of Rs.1,50,000/- with interest, on the basis of a promissory note, was filed by the respondent plaintiff under Order 37, CPC. After service of summons, the defendant applied for leave to defend vide his application under Order 37 Rule 3(5), CPC with the submission that firstly , the document in question cannot be termed to be a ‘Promissory Note’ and secondly, neither had he executed any promissory note/agreement in favour of the plaintiff nor had he taken any loan from the plaintiff, hence, he may be granted leave to raise his defence.

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The grounds as raised, were not termed to be plausible by learned trial Court and hence, the Court held that no leave to defend can be granted to the defendant and proceeded on to reject the application. 6. Learned counsel for the petitioner, while relying upon the judgment in B.L. Kashyap and Sons Ltd. Vs. M/s JMS Steels and Power Corporation & Anr., (2022) 3 SCC 294, submitted that learned trial Court erred in rejecting the application of the defendant as even if the Court found the ground as raised by the defendant not to be genuine or a triable issue and even if the Court had doubts or reservations regarding the genuineness of the defence as raised, it ought to have granted the leave to defend,

[2024:RJ-JD:9125]

[CR-243/2013]

(3 of 6)

may be a conditional one. Learned counsel further submitted that for grant of leave to defend, it is not essential that the ground as raised should essentially be a meritorious one. Even if the defence as raised is found to be an improbable one, the leave ought to have been granted, may be on conditions as deemed appropriate by the Court.

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Per contra, learned counsel for the respondent submitted that learned trial Court rightly rejected the application as the defence as raised by the defendant cannot be termed to be genuine, plausible or probable so as to entitle him in any manner and to grant of leave.

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Heard learned counsel for the parties and perused the record.

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The application as preferred by the defendant read as under :

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“1;g gS fd oknhuh }kjk vkns”k 37 lhŒihŒlhŒ ds rgr okn fcydwy gh xyr o cscqfu;kn vk/kkj cukdj is”k fd;k gSA

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2- ;g gS fd oknhuh }kjk ftl fy[kr dks izfrKk i= crk;k x;k gS og u rks izfrKk i= gS vkSj u gh bls izfroknh }kjk fu’ikfnr fd;k x;k gS] lgh rF; ;g gS fd izfroknh us oknhuh ls dHkh dksbZ jdc m/kkj gh ugh yh] ,slh fLFkfr esa oknhuh ds i{k esa fdlh nLrkostkr dk fu’ikfnr djus dk iz”u gh iSnk ugha gksrk gS] oknhuh }kjk okn dsoy ek= izfroknh dks ijs”kku djus o [kpsZ ls tsjckj djus ds fy;s gh is”k fd;k x;k gSA

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3- ;g gS fd oknhuh >qBs nkosa@izkFkZuk i= is”k djus dh vknh gS blh dk urhtk ;g nkok Hkh gS ,slh fLFkfr esa U;k;fgr esa izfroknh dks izfrj{kk djus dh bZtktr fn;k tkuk U;k;ksfpr gSA

(4 of 6)

[2024:RJ-JD:9125]

[CR-243/2013]

4- ;g gS fd Åij of.kZrkuqlkj ;fn izfroknh dks izfrj{kk djus dh bZtktr ugha nh tkrh gS rks] u rks lgh rF; vnkyr ds le{k vk;sxs vksj u gh izfroknh dks U;k; izkIr gksxkA

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5- ;g gS fd vU; otqgkr oj oDr cgl vtZ fd;s tk;sxsA vr% izkFkZuk i= izLrqr dh fuosnu gS fd izfroknh dks oknhuh }kjk fd;s x;s okn esa izfrj{kk djus dh bZtktr nh tkosa rkfd izfroknh dks U;k; izkIr gks ldsA ¼”kiFk i= lkFk is”k gSA½”

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A bare perusal of the above pleadings makes it clear that the defendant, in specific terms, denied the factum of loan itself and further averred that he did not execute any document in favour of the plaintiff. While analysing the four eventualities arising in matters pertaining to grant of leave to defend, the Hon’ble Apex Court in B.L.Kashyap’s case (supra), held that if the defendant satisfies the Court that he has a substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend. The second eventuality is when the defendant raises a triable issue albeit not a positively good defence, in that case, he would ordinarily be granted unconditional leave to defend. Third eventuality is when the defendant raises triable issues but it remains doubtful if the defendant is raising the same in good faith or a doubt about genuineness of the issues, the trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. The Hon’ble Apex Court observed that in those cases, the Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, i.e., where the proposed defence appear to be plausible but

[2024:RJ-JD:9125]

[CR-243/2013]

(5 of 6)

improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.

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In the opinion of this Court, the present ground/defence as raised by the defendant definitely falls in third category/eventuality. This Court is of the opinion that the defendant has although raised a triable issue, it is doubtful whether the same has been raised genuinely or in good faith. The reason for doubting the said genuineness is that the defendant has not, in specific terms, denied his signature on the document in question, he has just made a cursory statement that the document was not executed by him. Further, it is nowhere pleaded in the application that the notice served on him in the year 2010 was ever replied to.

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In view of the above observations, finding the matter to be of the third category, the revision petition is hereby allowed and the order impugned dated 31.10.2013 is hereby set aside. The defendant would be entitled for leave to defend in terms of Order 37 Rule 3(5), CPC on the condition of depositing an amount of Rs.1,00,000/- with the learned trial Court within a period of three weeks from now. The learned trial Court shall pass appropriate orders regarding treatment of the said amount. On deposit of the said amount within the stipulated period, the learned trial Court shall proceed with the trial of the suit. If the amount is not deposited as directed, the learned trial Court shall be at liberty to proceed with the judgment, forthwith.

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(6 of 6) [CR-243/2013]

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[2024:RJ-JD:9125]

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Further, as is clear on record, the order impugned pertains to the year 2013 and a decade has lapsed since then. The learned trial Court is hence directed to expedite the proceedings and decide the same preferably within a period of six months. It is made clear that no frivolous adjournments would be sought on behalf of the defendant and he would co-operate in completion of the proceedings within the time frame as directed by this Court. 14. Stay petition and the pending applications, if any, also stand disposed of .

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(REKHA BORANA),J

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259-Vij/-

Shailendra Arora v. Laxmi Jingar

Case brief

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Shailendra Arora v. Laxmi Jingar

Case brief

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