PRABHADEVI KANCHANLAL TALSANIA Vs. SHAMALDAS JIVANDAS

JUDGEMENT

(1.) BY this Civil Revision Application, the petitioner challenges the order dated 3rd March 1993 passed by the City Civil Court at Bombay in Summary Suit No.1528 of 1992. By that order, the court has granted unconditional leave to the defendants to defend the present suit. The suit has been filed by the petitioners-plaintiffs for recovery of the amount of Rs.24,661/-. The claim is made on the basis of a writing which shows that an amount of Rs.25,000/- was advanced by the plaintiff to the defendants. The writing is dated 13th January 1992. The receipt of money is acknowledged by the defendant. Perusal of the Order of the trial court shows that the trial court has granted unconditional leave to defendants to defend the suit because according to the defendant No.1, the amount of Rs.25,000/- was payable after the expiry of 5 years. It is pertinent to note here that the writing on which the suit is based does not mention this. The plaintiffs have strongly denied that the amount was to be payable after 5 years. Perusal of the order of the trial court shows that it has proceeded on the basis that as it is an admitted position between the parties that the plaintiffs had accepted the interest due till 13.4.92 in advance from the defendants, the principal amount may be repayable after 5 years. It is pertinent to note here that there is nothing on record to support the claim of the respondents that the amount as well as interest was repayable after five years only and such is not the normal manner in which money is advanced or lent. It was merely a claim made by the defendants No.1 which has no support in the document filed on the record. In these circumstances, therefore, in my opinion, the trial court was not justified in granting unconditional leave to the defendants to defend in the suit. It is further submitted by the learned counsel appearing for the respondent that the trial court had granted unconditional leave because though the amount advances was Rs.25,000/- , the suit was filed for recovery of Rs.24,661. In my opinion, the explanation that has been given by the plaintiff for filing the suit for recovery of Rs.24,661/- is that though the amount of Rs 25,000/- was advanced as a friendly loan by the plaintiff to the defendant on which the defendant had paid interest in advance for the first quarter and therefore, the recovery of the amount of Rs 24,661/- was claimed. In my opinion, this cannot be a ground for granting unconditional leave to defend the suit. If at all it shows that the plaintiffs were approaching the court with clean hand and if in fact they placed before the court a correct position that the defendant had paid the interest of the first quarter only on the principal amount, then it cannot be said that the amount was repayable only after a period of 5 years from the date of advance. The findings recorded by the lower court in this regard are not based on the material placed on the record.

(2.) IN the result, therefore, the revision succeeds and is allowed. The order impugned in the revision is set aside. At the request of the learned counsel for the respondents, the respondent is permitted to deposit the amount within a period of 6 weeks from the day on which the writ of this order would be received by the trial court. Rule made absolute accordingly with no order as to costs.'