BALJINDER SINGH Vs. JAGAN NATH

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution prays for quashing order dated 11.2.2004 passed by the Additional Civil Judge (Senior Division), Dabwali, directing that the Bank guarantee equal to the amount claimed by the plaintiff-respondent in the suit i.e. Rs. 1,58,240/- be furnished by the defendant-petitioner. The leave to defend filed by the defendant-petitioner was allowed subject to the aforementioned condition.

(2.) BRIEF facts of the case are that the plaintiff-respondent filed a civil suit No. 1060 of 29.8.2003 under Order XXXVII of the Code of Civil Procedure, 1908 (for brevity, 'the Code') for recovery of a sum of Rs, 1,58,240/- (Rs. 92,000/- as principal plus Rs. 66,240/- as interest upto the date of filing the suit), on the basis of pronote and receipt dated 22.8.2000 alleged to the executed by the defendant-petitioner in favour of the plaintiff-respondent. During the pendency of the suit, the defendant-petitioner filed an application dated 6.10.2003 praying for grant of leave to defend. The plea set up by the defendant-petitioner in the application that he did not execute the alleged pronote and receipt in favour of the plaintiff-respondent. It was further asserted that the defendant-petitioner used to sell his crop at the shop of the plaintiff-respondent who is a commission agent and there had been business dealing between them. It has been alleged that the plaintiff-respondent obtained signatures of the defendant-petitioner on blank pronote by representing that signatures from every farmer on the blank pronote as security were obtained and after settling the account, the blank pronote would be returned back to the concerned farmer. In reply, the plaintiff-respondent took the plea that as a matter of fact, an amount of Rs. 92,000/- was borrowed by the defendant-petitioner from him and a pronote in token of the aforementioned borrowing was got duly executed along with the receipt in the presence of the witnesses. There was a promise to repay the borrowed amount on demand along with agreed rate of interest at the rate of 2% per month. The allegation of the defendant-petitioner with regard to selling of crop has been denied. It has also been denied that the signatures of the defendant- petitioner were obtained on a blank pronote.

(3.) MR . Ashok Singla, learned counsel for the defendant-petitioner has vehemently argued that by virtue of direction issued by the Civil Judge to the defendant-petitioner to furnish the bank guarantee, the leave to defend as granted by him has become illusory and in fact a complete denial. According to the learned counsel, the pronote as well as the receipt are the result of fraud and misrepresentation.