JAYANT KALYANJI GHELANI Vs. ILAC LTD

JUDGEMENT

(1.) This first appeal is directed as against the decree passed in Summary Suit No. 538 of 1983 by the Bombay City Civil Court at Bombay on 1st October 1984 whereby the appellant was directed to pay an amount of Rs.18,000/- as per the summons for judgment no. 724 of 1983.

(2.) Summary Suit No. 538 of 1983 was filed by the respondent for recovery of an amount of Rs. 42,583.40 ps. with further interest at the rate of 20% per annum on 39,038.05 from the date of filing of the suit till payment and costs. In the said suit, summons for judgment bearing No. 724 of 1983 was issued by the respondent - plaintiff. It was opposed. Affidavit in reply was filed. City Civil Court Bombay by order dated 3.3.1984 granted leave to defend on the condition that the appellant shall deposit Rs.18,000/- within a period of eight weeks. Thereafter, since the appellant failed to deposit the said amount, as per the said order, the suit was decreed by order dated 1st October 1984. Thus, the summons for judgment no. 724 of 1983 in Summary Suit No. 538 of 1983 was confirmed. That order is under challenge before this Court in this First Appeal.

(3.) Respondent - original plaintiff though served is absent. Learned counsel for the appellant submitted that the leave granted by the City Civil Court on 3.3.1984 subject to condition of deposit of Rs.18,000/- was unjust and illegal, and more specifically in view of the judgment of the Apex Court in the matter of M/s. Mechalec Engineers and Manufacturers v/s. M/s. Basic Equipment Corporation ( AIR 1977 SC 577). He submitted that the said judgment of the Apex Court has laid down the principles to be followed while considering the question of granting leave to defend under Order-37 Rule-2 of the Code of Civil Procedure, 1908. He specifically states that this case falls under clause (b) of the principles as laid down in the said case, namely, "if the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and defendant is entitled to unconditional leave to defend."