SANJAY KOHLI Vs. VIKAS SRIVASTAVA

JUDGEMENT

(1.) BY this application filed under Order XXXVII Rule 3 of the Code of Civil Procedure, 1908 the defendant no.1 seeks grant of leave to defend the present suit.

(2.) THE plaintiff has filed the present suit under Order XXXVII of the Code of Civil Procedure for the recovery of an amount of Rs. 60,85,000/-. Initially, the suit was filed by the plaintiff against defendant no. 1 to 3 and later vide order dated 21.3.2011, the names of defendant no. 2 and 3 were directed to be deleted at the instance of the plaintiff, the same being unnecessary parties to the present suit. Earlier this court vide order dated 21.12.2010 had passed a decree for recovery of an amount of Rs. 60,85,000/- with costs and pendente lite and future interest @ 12 % p.a. against the defendant no.1 as the defendant no.1 had failed to enter appearance as per the mandatory requirement of Order XXXVII Rule 2(3) of the Code of Civil Procedure. The said order dated 21.12.2010 was later on set aside by this court vide order dated 21.3.2011 on the application moved by the defendant no.1 seeking setting aside of the ex-parte order dated 21.12.2010.

(3.) IN the leave to defend application filed by the defendant under Order XXXVII Rule 3, the main defence raised by the defendant is that the alleged transaction receipt i.e. has been forged and fabricated by the plaintiff. The defendant no.1 has also disputed his signatures and even his hand writing on the said receipt. It is also the defense of the defendant that the said receipt was sent to the CFSL and the CFSL in their report dated 17.4.2009 have not confirmed the hand writing of the defendant no.1 on the said receipt. It is also the defense of the defendant that an amount of Rs. 1.5 lacs was paid by the defendant through D.D. while an amount of Rs.23,50,000/- was paid in cash by the wife of the defendant no.1 when the plaintiff had assured the wife of the defendant no.1 that he will not oppose the bail application of the defendant no.1 if the said amount is paid to him. Based on such defense, the defendant no.1 has claimed grant of unconditional leave to defend the present suit.