HONEYWALA INDUSTRIES Vs. ARUN KUMAR JHOSHI

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India assails the legality and validity of the order dtd. 13/9/2022 passed by the learned Additional District Judge No.3, Alwar in Civil Suit No.34/35/19 whereby, an application filed by the petitioner/defendant (for brevity, "the defendant") under Order 37 Rule 3 (5) CPC seeking "leave to defend", has been dismissed.

(2.) The relevant facts in brief are that the respondent/plaintiff (for brevity, "the plaintiff") filed a suit for recovery of a sum of Rs.13,06,042.00 alongwith interest against the defendant stating therein that he advanced a loan of rupees ten lac to the defendant on 18/3/2015 through Cheque No.062902 with interest @ Rs.1.35% per month. It is averred that interest rate was varied from time to time and some amount towards principal and/or interest was also paid by the defendant; but, an amount of Rs.13,06,042.00 is still due. The defendant filed an application seeking "leave to defend" which has been dismissed by the learned trial Court vide its order dtd. 13/9/2022, impugned herein.

(3.) Learned counsel for the defendant, inviting attention of this Court towards the averments of the plaint, would submit that the suit filed by the plaintiff under the provisions of Order 37 CPC itself is not maintainable as it is not covered under any of the clauses therein. He submits that for determination as to whether any sum is due against him, detailed enquiry including evidence of the parties is required inasmuch as it is not based either on promissory note or any acknowledgment or any other document establishing his liability to pay the amount claimed in the suit. Learned counsel submits that misconstruing the judgement of Hon'ble Supreme Court of India in case of B.L. Kashyap and Sons Limited v. M/s JMS Steels and Power Corporation and Anr.: (2022) 3 SCC 294, the learned trial Court erred in dismissing his application. He submits that since he has plausible defence, he is entitled for unconditional "leave to defend". Learned counsel, in support of his submissions, relies upon a judgement of Hon'ble Delhi High Court in case of Ajay Shaw v. HDFC Limited: AIRONLINE 2018 DEL 653. He, therefore, prays that the writ petition be allowed, the order dtd. 13/9/2022 be quashed and set aside and the application filed by the defendant be allowed.