RAKESH KUMAR GUPTA Vs. ANIL KUMAR GUPTA

JUDGEMENT

(1.) INSTANT civil revision has been filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") for modifying the order dated 21.10.2011 (Annexure P -2) passed by learned Civil Judge (Jr. Divn.), Chandigarh whereby leave to defend has been granted subject to furnishing of security in court in the shape of FDR equal to suit amount. I have heard learned counsel for the parties and perused the record.

(2.) LEARNED counsel for the petitioner has contended that apparently the impugned order has been passed on consent of the parties, however, defendant never gave the said consent and made reference to the statement of the petitioner got recorded in the Court. The learned counsel has further contended that leave to defend has been allowed subject to conditions despite the fact that there are substantial debatable issues which can only be decided in a regular suit. The learned counsel has referred to various objections to the suit. Firstly, general power of attorney on the basis of which suit was filed, stood cancelled, thereafter fresh general power of attorney was executed in favour of another person. The plaintiff, being an NRI, cannot execute a power of attorney in India. The basis of the suit is a settlement deed allegedly executed between the parties. The said deed was allegedly executed in the police station and was under coercion and the same is under challenge in civil proceedings. The learned counsel has further contended that suit pertains to the rights and liabilities of the Company, as such the provisions of the Companies Act will apply. The learned counsel has further contended that the suit is barred under the Companies Act and the plaintiff is a Director of the concerned company, as such, substantial issues arise which need to be decided only in a regular suit, not in a summary manner. The learned counsel has further contended that although leave to defend has been granted, but the condition of furnishing security in the shape of FDR equal to suit amount could not have been imposed as the facts raise debatable issues for consideration.

(3.) I have considered the rival contentions of learned counsel for the parties.