POOJA PAHWA Vs. MAHINDER SINGH

JUDGEMENT

(1.) The impugned order was passed on 01.12.2017 by the trial Judge on the file of the summary suit (CS No. 453/17) instituted by the respondent (the plaintiff) against the petitioner (the defendant) under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) founded primarily on a document styled as a promissory note and receipt (copy at page 36 of the paper book), dated 06.04.2016. The defendant (i.e. the petitioner) had moved an application seeking leave to defend which was considered by the trial judge through the impugned order. Though leave to defend has been granted, the defendant has been called upon to deposit in the Court an amount of Rs.5.50 lakhs as mentioned in the above-mentioned document dated 06.04.2016 in the form of fixed deposit receipt (FDR), initially taken out for a period of one year with provision for auto renewal, such deposit being a condition attached to the grant of leave to defend. It is the imposition of the said condition which is sought to be assailed through the petition at hand.

(2.) The suit filed by the plaintiff is for recovery of Rs. 6,60,000/- based on the afore-mentioned document. It does appear that in the part of the document under the heading "promissory note", there is some error in that the name of the defendant appears even in the space wherein the name of the creditor was to be mentioned. But then, the document read as a whole, prima facie, confirms, particularly upon perusal of the other portion under the heading "receipt", that money had been passed on by the plaintiff to the defendant who acknowledged its receipt on 06.04.2016.

(3.) While seeking leave to defend it was pleaded by the defendant/petitioner that on account of friendly relations, she and her husband had been recipient of financial assistance from the plaintiff. As per her case, the amount due towards the plaintiff as on 15.07.2016 by her and her husband was in the sum of Rs. 70 lakhs. She stated in para 7 of the said application that the said amount had been "duly repaid" by her on 15.07.2016. In this context, she would refer to a transaction represented by another document described as Agreement to Sell and Purchase/Bayana dated 15.07.2016 purportedly executed by her for sale of her property described as property bearing no. J13/29, second floor, Rajouri Garden, New Delhi in favour of one Jugal Arora (copy filed as Annexure D-1). In the said document, to which the plaintiff of the case purports to be a marginal witness, the defendant is shown to have received from Jugal Arora, an amount of Rs. 78 lakhs, partly by cheque in the sum of Rs. 8 lakhs and balance in cash in the sum of Rs. 70 lakhs, the second part having been reflected as "by cash adjustment of previous dealing with Sh. Mahinder Singh, R/o AD-44 Tagore Garden, New Delhi -110027 witness in the same agreement". The defendant also relies on another document styled as "receipt" (copy Annexure D-2) purportedly executed by her on 15.07.2016 to which the plaintiff of the case is also stated to be a witness where the above-mentioned acknowledgement of Rs. 70 lakhs "by cash adjustment" is reflected.