P M RAJU Vs. NAGARJUN FINANCE LIMITED

JUDGEMENT

(1.) CRP No.4381/2003 had been preferred as against an order in I.A. No.244/2001 in O.S. No.517/99 on the file of VIII Additional Chief Judge, City Civil Court, Hyderabad and CRP No.4383/ 2003 as against an order in LA. No.243/ 2001 in O.S.No.517/99. These applications were moved by Defendants 1 and 2 in the suit under Order 37 Rule 3 of the Code of Civil Procedure, hereinafter in short referred to as "Code" praying to grant leave to them to defend the suit O.S. No.517/99 on the file of VIII Additional Chief Judge, City Civil Court, Hyderabad. The learned Judge by order dated 18-8-2003 allowed the aforesaid applications on condition of the petitioners depositing a sum of Rs. 10 lakhs, subject to the result of the suit, in Civil Court on or before 2-9-2003 along with their written statements and on failure to comply with the said conditions, the petitions shall stand dismissed. Aggrieved by the imposition of the condition instead of granting unconditional leave to defend, the petitioners had preferred the present civil revision petitions.

(2.) Sri Sudershan Reddy, the learned Counsel representing the petitioners in these Civil Revision Petitions had straight away pointed out that the learned Judge having specifically observed that there is a serious question as to law of limitation coupled with the fact of alleged acknowledgement by part payment and by acknowledgement in writing, definitely had erred in imposing the condition instead of granting unconditional leave. The learned Counsel had placed strong reliance on Raj Duggal v. Ramesh Kumar Bansal, AIR 1990 SC 2218, in this regard.

(3.) Sri CH. Ramesh Babu, the learned Counsel representing the respondent M/s.Nagarjuna Finance Limited, a Company incorporated under the Companies Act, 1956, submitted that as can be seen from the respective affidavits filed in support of the applications filed, it is clear that this plea of limitation is raised only as a vague plea just to have a contest and nothing more. The learned Counsel also commented that there are several transactions between he parties and the defence that the alleged payment of Rs.10 lakhs on 30-11-1996 would not save the period of limitation is just a sham or an illusory defence and most probably in the light of the peculiar facts, the learned Judge had just exercised discretion in a particular way and had directed deposit of a sum of Rs.10 lakhs subject to the result of the suit. The Counsel also pointed out that the suit itself is instituted for recovery of Rs.92,91,000.00 together with future interest and costs and the suit is instituted on the strength of a promissory note dated 24-12-1992 and cheques dated 15-3-1995 and 15-6-1995 and a deed of guarantee dated 27-12-1994 executed by 2nd defendant and on the basis of a part payment of Rs.10 lakhs on30-11-1996 with a covering letter dated 29-12-1996, the learned Counsel also pointed out that the suit in fact was instituted after issuance of notice and no reply was given thereto and this aspect also may have to be taken into consideration. The learned Counsel placed strong reliance on Thota Kanakadurga Varaprasad Rao v. Madapati Chandra Sekhara Reddi, 2002 (3) ALD 97, and also State Bank of Saurashtra v. Ashit Shipping Services (P) Limited, 2002 (3) ALD 83 (SC), in this regard. While concluding, the learned Counsel in all fairness submitted that these are all discretionary orders and the learned Judge exercised the discretion in a particular way which need not be disturbed by this Court.