Abhishek Oberoi v. Karishma Oberoi

1. Allowed, subject to all just exceptions.

2. The application shall stand disposed of. C.R.P. 165/2023 & CM APPL. 33264/2023

3. The parties are siblings i.e., real brother and sister. The petitioner has instituted a suit for recovery of Rs. 6,05,000/- against the respondent/defendant under Order XXXVII CPC. His claim is that he had advanced a sum of Rs. 5,90,000/- to the respondent/defendant on 07.11.2017 and Rs. 15,000/- on 20.09.2018 by way of a bank transfer. He is aggrieved that the learned ADJ-06, Central District, Tis Hazari Courts, Delhi, has granted unconditional leave to defend to the respondent/defendant vide order dated 10.04.2023.

4. Learned counsel for the respondent is present on advance notice.

5. Learned counsel for the petitioner/plaintiff has urged that the respondent/defendant, in the replication filed in CS(OS) 637/2021 pending before the High Court of Delhi, admits that she had taken a loan of Rs. 6,29,000/- from the petitioner/plaintiff, whereas contrary to such plea in the instant case, she has denied taking any loan from her brother in the application for leave to defend.

6. It is vehemently urged that the respondent/defendant cannot be allowed to approbate and reprobate at the same time and it is unlawful that she has submitted a sham and bogus claim in order to seek leave to defend, which has been granted in a mechanical manner by the learned Trial Court. It is also pointed out that the plea of the respondent/defendant that she has paid the entire amount of loan is also not substantiated by any documentary evidence.

7. Per contra, learned counsel for the respondent/defendant has urged that if the case of the petitioner/plaintiff is appreciated, he had merely advanced the alleged loan by way of a bank transfer. However, the ingredients of Order XXXVII CPC have not been made out as the suit is not based on any negotiable instruments and/or written agreement.

8. It would be pertinent to reproduce the order passed by the learned Trial Court which reads as under:- “By way of this order, I shall decide the application for leave to defend. The plaintiff and the defendant are the real brother and sister. It is submitted that the plaintiff transferred the amount of Rs. 5,90,000/- vide cheque No/Reference No. 000000131863 dated 07.11.2017 through his bank M/s Canara Bank, East Patel Nagar to the defendant from his joint account with his deceased grandmother namely Nirmal Oberoi. It is averred that again in the month of September 2018, he transferred the amount of Rs. 15,000/- on 20.09.2018 vide cheque No/Reference NO. 1000069721, and hence the present suit under Order 37 CPC has been filed for recovery of the sum of Rs. 6,05,000/-. The defendant has taken the plea that the amount of Rs. 5,90,000/- was transferred by her grandmother and the further amount of Rs. 15,000/- was given to her on her marriage as the gift. It is noted here that the plaintiff in the present case has relied upon the statement of account no. 2010101009183 which is in the name of Nirmal Oberoi i.e. the deceased grandmother of the plaintiff. The account statement shows that the account was in the name of Nirmal Oberoi and the joint holder was the plaintiff. It has not been clarified clearly in the plaint as to whether the amount of Rs. 5,90,000/- was transferred through internet banking or by way of cheque. If it was by way of cheque, then who was the signatory? If it is by internet banking, then who had initiated the transaction? These questions have not been answered in the plaint. If the grandmother has signed the cheque of Rs. 5,90,000/-, then no liability of the plaintiff under Order 37 CPC is made out qua the plaintiff. Further, the defendant claims that the amount of Rs. 15,000/- was given as gift. Therefore, the defendant deserves an opportunity to contest the case on merits to show t hat the plaintiff is not entitled for the decree of recovery of money. In view of the aforesaid grounds, the application for leave to defend stands allowed. The defendant is directed to file written statement within stipulated time period from today with advance copy to the opposite side. Thereafter, let the replication be filed with advance copy to the opposite side.”

9. Ex-facie, in view of the fact that the respondent/defendant was having a joint account with her mother and the alleged amount was transferred prior to her marriage, the respondent/defendant is raising a plausible defence. There is also an issue as to whether or not the suit itself is barred by limitation in terms of Article 19 in the Schedule to the Limitation Act, 1963.

10. Learned counsel for the petitioner has relied upon the decision in B.L. Kashyap v. JMS Steels and Power Corporation[1] and it is canvassed that if there appears to be a reasonable doubt about probability of defence, sterner conditions should be imposed. However, the said case law has no application in the present matter for the fact that there is a doubt as to whether the present suit is within the period of limitation as provided for in Section 19 of the Limitation Act, 1963 and the respondent/defendant has raised a plausible defence.

11. The impugned order passed by the learned Trial Court does not suffer from any perversity, illegality or incorrect approach in law.

12. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.

13. The present civil revision petition is dismissed. The pending application also stands disposed of.

DHARMESH SHARMA, J. APRIL 03, 2024 sp