SHIRAZ DAR Vs. MOHAMMAD ASHRAF BHAT

JUDGEMENT

(1.) Petitioner's case is that a civil suit under Order XXXVII of the Code of Civil Procedure for recovery of an amount of Rs.12.00 Lacs has been filed by the plaintiff (respondent herein) before the court of learned Additional District Judge, Srinagar (for short "Trial Court") against him.

(2.) The petitioner-defendant states that he moved an application seeking leave to defend the suit on the basis of the averments made in the application. Learned Trial Court vide order dtd. 25/2/2019 disposed of aforesaid application, granting petitioner liberty to defend the suit subject to depositing an amount of Rs.6.00 lacs in the Court or in alternative pay or deposit cash security of Rs.6.00 lacs in the shape of bank guarantee within a period of 30 days, failing which, the court said, that it would be deemed that the defendant (petitioner herein) has no defence to defend the suit. It is this order, of which petitioner is aggrieved and seeks quashment thereof on the grounds tailored in the petition in hand.

(3.) Application, moved by the petitioner seeking liberty to defend the suit, has been filed on the ground that the repayment of the money had been effected partly in cash and partly by remitting the money through transfer in the account of the plaintiff (respondent herein), as such, petitioner had prayed for grant of liberty without any condition. It is stated that the suit filed before learned Trial Court is based on four cheques, being bill of exchange; the initial presumption is taken about the genuineness of the claim, unless the Court grants leave to defend the suit after deriving satisfaction about the genuineness of the defence. It is further submitted that neither is initial presumption available to genuineness of the claim nor is the power available to the court below to put the defendant-petitioner herein to the condition while granting liberty to defend the suit. Therefore, the learned Trial Judge failed to sustain the objections that the jurisdiction in terms of Order XXXVII CPC is not available to the plaintiff- respondent herein. Learned counsel for petitioner relied upon the judgment of the Apex Court passed in State Bank of Hyderabad v. RABO Bank reported in (2015) 10 SCC 521.