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'1, RAEES AHMAD tudgment Delivered on: 27.O7.2OII.... Appellant
Through : Mr. S.C. Arora, Adv. along with the appellant
VETSUS
VUENDER KUMAR ..... Respondent
Through : Mr. Ratnesh Bansal, Adv.
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?:, €.s.srsTANt, t. (oRAL)
1. The appeal has been filed against the judgment and decree dated 2L.8.2009 passed by learned Additional DistrictJudge. The factual matrix necessary for determination of the ?controversy in question is that respondent (defendant in the suit) had filed a suit before the trial court under the Provisions of order xxxvll of the code of civil Procedure for recovery of an amount of {7.00 lakhs along with interest @ 9o/o per annum. summons were issued in the prescribed form in Appendix a(b) of the Code of Civil Procedure. The amount of T[7].00 lakhs was alleged to be taken as loan. Appellant had filed an application for leave to defend. However, vide the said judgment the application for leave to defend was dismissed and the suit wad decreed in favour of the respondent herein. Learned Additionai District Judge decreed the suit for a sum of {7.00 lakhs along with pendente /ite and future interest @ 9o/o per annum. Learned counsel for the appellant submits that the 'basis on which the decree was granted was that the appellant hi;
2. t
3. 2011:DHC:17868 1:' l-.i I t appellant and, accordingly, a triable issue arises, as the. appellant has denied execution of the receipt. Learned counsel for the respondent submits that defence, sought to be raised, by the appellant is sham and moonshine and,the learned trial court has rightly dismissed the application for leave to defend.
4. After some hearing in the matter, learned counsel for the respondent submits that in case appellant is willing to deposit the suit amount, conditional leave may be granted to the appellant and a direction may also be issued to the trial court to dispose of the matter expeditiously. Based on settled position of law, it has been held by the Apex Court that a conditional leave to defend may be granted.
5. Learned counsel for the appellant has strongly pleaded before this court that appellant does not have a strong financial background and the defence sought to be rbised warrants unconditional leave. Counsel for the appellate relies upon Sunii Enterprises and Anr. v, SBI Commercial and Internationai Bank Ltd reported in (1998) 5 SCC 354,the apex court obselved:
amount claimed should be paid into court or. otherwise secured." 'l
6. Counsel for the appellant submits that appellant has already deposited a sum of {2.00 lakhs in this court.
7. Having heard counsel for the parties and the stand taken by: counsel for the respondent, conditional leave is granted to the appellant on his depositing 50% of the suit amount, out of. which, the appellant has already deposited a sum of {2.00 lakhS in this court, and the balance amount of t[1].50 lakhs shall be deposited by the appellant in three equal installments ({50,000/-, each,) within three months from today before the trial court. lt will be open for the respondent to.make ari ^+ release of the total amount of t[3].50 lakhs deposited with the trial court. The trial court wiii hear and dispose of the application for withdrawal i; accordance with law and by imposing such condition as it may deem fit. v e' application before the trial court for /? ' i't
9. List the matter before trial court for directions on 15.3.2011. lt is agreed that both the parties will not seek extension of time for completion of pleadings. Learned trial court is directed tb hear and dispose of the matter as expeditiously as possible and preferably within one year from today. a,
10. Accordingly, appeal as well as application stand disposed of in view of above.
11. Let a copy of this order be given dasti to counsel for the parties.' January 27, ?OLL 'msr'