Full Text
HIGH COURT OF DELHI
Date of order : 9th August, 2023
SOBHA JAIN ALIAS SHOBHA I JAIN ..... Petitioner
Through: Mr.Saubhagya Agarwal and Mr.Keshav Dwivedi, Advocates
Through: Mr.Anish Chawla, Advocate
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant revision petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) has been filed on behalf of petitioner seeking the following reliefs:- “a) Pass an appropriate order quashing the impugned order (Annexure no. 1) dated 05.01.2022 passed by Ld. Additional District Judge, South District, New Delhi granting unconditional leave to defend to Respondent; or in alternative b) Pass an order imposing condition on Respondent to deposit the entire principal sum together with such interest as the court deems fit on leave to defend to secure the interest of Petitioner in the light of guidelines issued by Hon'ble Apex Court in the case of IDBI Trusteeship Services Ltd v. Hubtown Ltd., 2016 SCC Online SC 1274. c) Any other order and/or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
2. A conjoint consideration of the material on record reveals that the petitioner/plaintiff filed a suit for recovery of a cumulative amount of Rs. 71,50,000/- against the respondent/defendant under Order XXXVII of the CPC, on the ground that the respondent had approached the petitioner for a loan of Rs. 15,00,000/- and thereafter, of Rs. 40,00,000/-, however, the cheques finally issued by the respondent got dishonoured and the respondent failed to honour the promissory notes executed by him.
3. In the said suit, the respondent preferred an application seeking the leave of the court to defend under Order XXXVII Rule 3(5) of the CPC which was allowed by the Additional District Judge-03, South District, Saket Courts, New Delhi (hereinafter “ADJ” or “Trial Court”) vide order dated 5th January 2022.
4. The petitioner, being aggrieved by the order allowing the leave to defend in favour of the respondent, has preferred the instant petition by invoking Section 115 of the CPC.
5. The learned counsel appearing on behalf of the petitioner/revisionist submitted that the impugned order dated 5th January 2022 allowed the leave to defend in favour of the respondent despite the fact that the respondent failed to bring forth a substantial or legitimate defence or any triable issues in his defence.
6. It is submitted that the loan advanced by the petitioner to the respondent was an isolated business activity between the parties and not a transaction carried out in the ordinary course of business for which she required any license. The learned counsel submitted that the Trial Court failed to consider that the undisputed loan transaction amount of Rs. 55,00,000/- has been duly established by the documentary evidence that was placed before it, including the Bank Statements of the petitioner which show the disbursement of the loan amount, the Promissory Notes of loan amount and the Books of Accounts of the petitioner.
7. It is further submitted that the respondent has raised the issue of maintainability on the ground of limitation before the learned ADJ in his defence, which has no force since the petitioner approached the Trial Court within the statutory period prescribed. i.e., within three years from the date when the payment of interest accrued.
8. The learned counsel for the petitioner argued upon the maintainability of the instant petition and submitted that the grant of leave to defend is a jurisdictional issue which may be adjudicated upon by this Court under Section 115 of the CPC. Reliance has been placed upon the following judgments to give force to the contentions raised on the issue of maintainability and jurisdiction: a) Wada Arun Asbestos P. Ltd. Vs. Gujarat Water Supply & Sewerage Board, Civil Appeal No. 7314/2008 dated 16th December 2008 by the Hon’ble Supreme Court. b) Ashwani Kumar vs. Kalimuddin, 2018 SCC OnLine Del c) Mange Ram vs. Raj Kumar Yadav, 2018 SCC OnLine De; d) Netrapal Singh vs. Ravindra Kumar Kalyani, 2019 SCC OnLine Del 9622 e) Kadhirvel vs. Vinod Kumar, 2019 SCC OnLine Del 9057 f) Sripati Singh vs. State of Jharkhand, 2021 SCC OnLine SC
9. It is submitted that the respondent only intends to derail and prolong the summary proceedings, since there is no evidence or material supporting the case of the respondent. Moreover, the grounds and objections raised in application preferred by the respondent seeking leave to defend are mere unsubstantiated allegations which would only lead to delay in the disposal of the matter before the Trial Court. Reliance has been placed upon the judgments passed in Ashwani Kumar vs. Kalimuddin, 2018 SCC OnLine Del 11003 and Mange Ram vs. Raj Kumar Yadav, 2018 SCC OnLine Del
10316.
10. The learned counsel for the petitioner placed upon the judgment passed in IDBI Trusteeship Services Ltd. vs. Hubtown Ltd. 2016 SCC OnLine SC 1274, to submit that the learned Trial Court ought not to have granted an unconditional leave to defend to the respondent since the respondent only raised proforma defences and did not raise any substantial defence or triable issues. Therefore, it is prayed that the impugned order be set aside.
11. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that there is no error of jurisdiction or illegality in the order impugned.
12. The learned counsel submitted that the objections raised on behalf of the petitioner do not fall within the ambit of Section 115 of the CPC. Relying upon the judgment passed in D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh and Ors. (1970) 2 SCR 368, it is submitted that the revisional court shall not correct errors of facts, however gross they may be, as only errors which pertain to the question of jurisdiction may be delved into by this Court. Reliance has also been placed on the judgments passed in M/s Sunil Enterprises & Anr. vs. SBI Commercial & International, (1998) 5 SCC 354, Sh. Naresh Kumar vs. Ravinder Kumar, 2016 SCC OnLine Del 5360, and Tek Singh vs. Shashi Verma, (2019) 16 SCC 678, to support the averments regarding maintainability of the instant petition.
13. It is submitted that there are no promissory notes as have been alleged by the petitioner which show any transaction between the parties. The petitioner has forged the signatures of the respondent on several documents produced before the Trial Court. Moreover, the petitioner has failed to approach the Trial Court within the stipulated time period of limitation, which ground has been vehemently raised on behalf of the respondent before the Trial Court in his application seeking leave to defend.
14. It is also submitted that the petitioner has failed to show that there is any illegality or material irregularity in the order of the Court below. The learned Trial Court appreciated the defence and other material on record of the respondent and only then passed the reasoned order granting the leave to defend in favour of the respondent. Therefore, there is nothing irregular or illegal in the order passed by the learned Trial Court and accordingly, the instant petition, being devoid of merit, is liable to be dismissed.
15. Heard the learned counsel for the parties and perused the record.
16. The suit preferred before the Court below by the petitioner has been filed under Order XXXVII of the CPC which provides for summary procedure. The object of such provision is to facilitate speedy disposal of matters of nature that are included under Rule 1(2) of the Order. The CPC and the procedure laid down thereunder are in its structure and form is extensive and exhaustive enough to include all remedies available to the citizens and the procedure thereto. These remedies and procedures are extensively dealt with in the comprehensive Code. However, Order XXXVII facilitates a summary procedure saving an aggrieved party from the wide and extensive implications of the Code of Civil Procedure.
17. The procedure for institution of a summary suit is laid down under Rule 2 of Order XXXVII of the CPC which lays down as reproduced under:
18. The relevant provision to be appreciated for the adjudication of the instant petition is sub-rule 3 of Rule 2, reproduced above, which states that the defendant, against whom a summary suit is preferred, shall not defend his case without the leave of the Court by way of entering appearance. Such leave does not come as a matter of right under the summary procedure provided under the CPC.
19. Rule 3 of Order XXXVII of the CPC further provides for the procedure for the defendant to enter appearance and reads as under:
20. The extensive provision stipulating the procedure to be followed by the defendant in a summary suit is elaborate and comprehensive so as to ensure that the spirit and intent of summary procedure is not defeated by way of redundant prolongation of the matter by either party. As per the provision reproduced above, a defendant, upon entering appearance may apply for the leave to defend, which may be granted to him by the Court unconditionally or upon the terms which may appear to be just to the Court. The provision clearly states that the leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or if such defence is frivolous or vexatious in the opinion of the Court.
21. The bare language of the provision reflects the intent of the legislature to allow the defendant in a summary suit to defend his case upon obtaining the leave of the Court and to that extent his defence may be permitted to be placed before the Court. At this stage, the Court need not delve into the appreciation of evidence and deeper consideration of the facts of the case to adjudge whether the defendant will ultimately succeed in the suit preferred against him. The leave to defend comes as an opportunity if the Court is satisfied that there are triable contentions raised on behalf of the defendant. The decisive test, at the stage of the grant of leave to defend, is whether the defence raised by the defendant is frivolous or sham, or whether it raises a real and substantial issue inviting consideration by the Court.
22. Therefore, it is evident that in a summary suit, the rule is grant of leave to defend and its refusal is exception. The position has qua the grant of leave to defend has been dynamic, however, has always been in consonance with the object of the summary procedure provided under the CPC. The position taken in IDBI Trusteeship Services (Supra) stands improvised by the Hon’ble Supreme Court in the judgment passed in B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294, wherein it has expressed its view that the grant of leave to defend is the ordinary rule and denial of such leave is an exception. The relevant portion of the judgment is reproduced hereunder:
27. The Hon’ble Supreme Court explicitly settled that the Court exercising revisional powers shall not enter into the questions of facts or evidence or any errors thereto but shall limit itself to the question of errors of exercise of jurisdiction. Moreover, the bare language of the provision itself stipulates the three grounds based on which a revisional court shall interfere. This includes the set of matters where the Subordinate Court appears to have; (a) exercised a jurisdiction not vested in it by law, or (b) has failed to exercise a jurisdiction so vested, or
(c) has acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
28. The Hon’ble Supreme Court has time and again reiterated that it is not open for a High Court to delve into the questions of facts and merits while adjudicating upon an order under revision. The position has been reiterated in the judgment passed in Ambadas Khanduji Shinde vs. Ashok Sadashiv Mamurkar, (2017) 14 SCC 132, wherein the Hon’ble Supreme Court held as under:
29. Upon a bare perusal of the judgments reproduced above, it is evident that the scope of intervention by this Court under Section 115 of the CPC is fairly narrow and limited. The provision stipulates the three grounds where a High Court may interfere by calling for the record of any case decided by a subordinate Court, where an appeal against such a decision does not lie and, as reproduced above, the Hon’ble Supreme Court has also reiterated the view that the scope of revisional powers bars an interference on the basis of errors of facts or law. It is only where there is an irregular exercise or nonexercise of jurisdiction or the illegal assumption of jurisdiction by a court that the revisional court may intervene. Hence, it is apparent that this Court shall also limit itself to the consideration whether the order passed by the learned Trial Court was passed in proper exercise of jurisdiction and shall not re-appreciate evidence or sit in appeal over the order of the Trial Court.
30. In the case at hand, the learned Trial Court before appreciating the matter on the merits, reiterated, considered and appreciated the position of law with respect to summary procedure as provided under the CPC and the grant of leave to defend by referring to the judgments passed in IFCI Factors Ltd. vs.
MAVEN Industries Ltd. and Ors., 2015 SCC OnLine Del 13519 and Krishan Kumar Wadhwa vs. Arjun Som Dutt, 2018 SCC OnLine Del 7441 wherein it was held that a suit under Order XXXVII of the CPC be filed only when it is maintainable strictly under Order XXXVII. The position pertaining to grant of decree in a summary procedure was reiterated in light of the judgment passed in M/s Sunil Enterprises (Supra) wherein the circumstances in which an unconditional leave to defend may be granted in favour of a defendant in a summary suit have been delineated.
31. Upon appreciating the prevailing position of law, the learned Trial Court while passing the impugned order dated 5th January 2022 observed and held as under:
32. It is apparent, from the bare language of the order, that the learned ADJ was adequately satisfied that the respondent herein had raised substantial defence of the degree which may non-suit the petitioner/plaintiff, if proven upon conducting and concluding the trial. The Trial Court took cognizance of the defence raised by the respondent on the ground of limitation and maintainability, the adjudication of which may significantly affect the outcome of the suit preferred by the petitioner.
33. The learned Trial Court considered the position of law and granted the leave to defend upon finding that there were triable issues raised on behalf of the respondent in his defence. The learned Trial Court was of the view that the triable issues raised on behalf of the respondent could not be dismissed at the outset without considering the merits of the defence during trial. There is nothing in the action taken by the learned Trial Court, to this effect, which suggests that the learned ADJ exercised his jurisdiction illegally.
34. It is clear that the Trial Court was of the view that the claims of the plaintiff and the defence of the defendant presented disputed facts which required the scrutiny of the Court and a due and proper consideration before making reaching to a conclusion and passing a decree in the suit preferred by the petitioner. At that stage, not going into the defence raised by the respondent would neither have served the interest of justice nor would have affirmed the principles of the law pertaining to summary suits and grant of leave to defend which already stands settled.
35. The learned ADJ passed the impugned order only after considering the material placed before her, the submissions and objections raised on behalf of the plaintiff in his suit and in the application made on behalf of the defendant as well as the intervening circumstances pertaining to the issues raised on behalf of the defendant by way of its application seeking leave to defend. There is nothing in the contents of the impugned order that suggests that while passing the order, the learned ADJ exercised jurisdiction not vested in her by law or that she failed to exercise jurisdiction that is vested in her. Moreover, the petitioner has also failed to show that the learned ADJ, while passing the impugned order exercised her jurisdiction illegally, or that the impugned order suffers from any infirmity or material irregularity.
36. The learned ADJ also considered the law that stands settled and granted the leave to defend in the favour of respondent since there were triable issues and a substantial defence raised on behalf of the respondent. The learned Trial Court rightly held that a substantial defence had been raised on behalf of the respondent which required consideration by way of conducting a trial. The issues pertaining to the jurisdiction, disputed facts, merits in the case of the petitioner are certainly triable issues.
37. Therefore, considering the entirety of the matter, the aforesaid facts, circumstances, submissions made on behalf of the parties during the course of arguments and in their pleadings, the contents of the impugned order dated 5th January 2022 as well as the law settled regarding summary procedure and revisional jurisdiction, this Court is not inclined to exercise its revisional jurisdiction and set aside the impugned order which has been passed after due consideration and in proper exercise of the powers.
38. The learned Trial Court has passed a reasoned order while granting the leave to defend and there is nothing on record to show that the jurisdiction has been improperly exercised by the learned Trial Court.
39. In view of instant petition is dismissed for being devoid of merit, along with pending applications, if any.
40. The order be uploaded on the website forthwith.