MAHESH CHANDRA Vs. BALU RAM

JUDGEMENT

(1.) THE revision petition has been filed against the order dated 6. 7. 2001 passed by the learned Additional District Judge, Bhilwara in Regular Case No. 56/2000 granting relief to defend in summary trial under Order 37 Rule 3 of the Code of Civil Procedure, 1908 (for short, "the Code" ).

(2.) THE facts and circumstances giving rise to this case are that the present revisionist/plaintiff filed a suit on 30. 11. 2000 under Order 37 of the Code for recovery of Rs. 60,200/- from the non-petitioner/defendant with the averment that the defendant had borrowed a sum of Rs. 35,000/- on 1. 12. 97 for his personal purpose for a period of six months and he executed one promissory note and also issued a receipt for Rs. 35,000/- on the same date. On receiving the notice, defendant filed reply on 7. 4. 2001 and also prayed for leave to defend on the ground that he had not borrowed Rs. 35,000/- from the revisionist but had borrowed only Rs. 25,000/- with interest of Rs. 6/- on each hundred and he had deposited Rs. 25,000/- with interest, hence no dues were outstanding from him though he had not been issued the receipt by the revisionist. He had also taken other legal pleas that the revisionist was not having the valid licence under the Money Lending Act and, thus, he was not entitled to file the suit. An order under Order 37 Rule 5 of the Code has been passed granting leave to defend, hence this revision.

(3.) IN M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation (4), the Hon'ble Supreme Court considered a number of its earlier judgments and reiterated the principles relevant for this purpose laid down by the Calcutta High Court in Smt. Kiranmoyee Dassi vs. Dr. J. Chatterjee (5), which are as under:- " (a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence, the plaintiff is not entitled to sign the judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such conditions, and thereby show mercy to the defendant by enabling him to try to prove a defence. "