MUKESH BHAVSAR Vs. YOGESH TULSIDAS SHAH

JUDGEMENT

(1.) This revision application filed under section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 13th March 1997 passed by the City Civil Court at Bombay. By the said order dated 13.3.1997 the City Civil Court, Bombay, granted leave to the petitioner subject to the petitioner depositing in the Court a sum of 50,000/-.

(2.) Yogesh Tulsidas Shah, the plaintiff, filed a summary suit under Order 37 Rule 2 of the Code of Civil Procedure against the present petitioner (original defendant) Mukesh Bhavsar in the City Civil Court at Bombay praying for decree of Rs.50,000/- against the defendant at the rate 18% per annum or at such rate the Court may deem fit. According to the plaintiff, the defendant approached him for a friendly business loan of Rs.60,000/- for his business. On request of the defendant, according to the plaintiff, he advanced a sum of Rs. 60,000/- to the defendant on 4.11.1993. The defendant executed a promissory note in favour of the plaintiff on that date. The plaintiff stated in the plaint that the defendant neglected to repay the said loan amount or any part thereof despite various requests and, therefore, he was constrained to send a notice to his Advocate dated 27.1.1994 calling upon the defendant to pay the said amount of loan. The notice was received by the defendant but the payment was not made. The plaintiff gave up the claim of Rs. 10,000/- and with a view to bring the claim within the jurisdiction of the City Civil Court confined his claim to Rs. 50,000/-. The plaintiff also prayed for interest since according to him the defendant enjoyed the friendly loan advanced by the plaintiff to the defendant. Along with the plaint, the plaintiff annexed promissory note dated 4.11.1995 a copy of the notice dated 27.1.1994 and postal acknowledgment of notice. Upon service of summons for judgment, the defendant filed affidavit in reply and he denied the claim of the plaintiff. The defendant set up the defence in the affidavit in reply to the summons for judgment that the claim of the plaintiff was false and that he did not execute the pro-note as alleged on 4.11.1993. According to the defendant, the said pro-note is forged one. In the alternative it was also set up by the defendant that the plaintiff has been setting up similarly false and fictitious claim based on bogus documents against many other businessmen. The defendant in his affidavit in reply gave names of six persons against whom such fictitious claims were lodged by the plaintiff. The defendant thus submitted that he has a strong case to defend and, therefore, unconditional leave to defend be granted to him.

(3.) The trial Court vide the impugned order dated 13.3.1997 held that though the defendant has raised some triable issues but they were not substantive and hence the defendant is not entitled to the unconditional leave and accordingly granted leave to defend subject to his depositing in Court a sum of Rs. 50,000/-.