TMI Blog2006 (8) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitioner- defendant filed an application under Order XXXVII Rule 3(5) of C.P.C. for leave to defend unconditionally and the said application was rejected by the trial Court. The writ Petitioner, therefore, approached the High Court in Civil Revision Application No. 659 of 2002 and in terms of the consent orders, it was disposed of on 02.05.2002. The said order was to the effect that the writ petitioner was to deposit an amount of ₹ 20,00,000/- with the trial Court within four months to show his bonafides and was entitled to take out an application for leave to defend which was required to be heard on merits. If he succeeded in his application for leave to defend, he was allowed to withdraw the amount deposited. The trial Court heard the parties afresh and by order dated 11.03.2005 allowed the application (Ex. 34) on the condition that the writ petitioner was to deposit an additional amount of ₹ 50,00,000/- in two instalments. The said order was challenged before the High Court. Before the High Court, by referring to the numerous correspondence between the parties right from 05.11.1997 onwards, writ petitioner submitted that the summary suit raised several disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the writ petitioner has finally worked out the figure, quantified the payment to be made to the plaintiff and in any case less than the amount certified by the said Architect on 19.04.1999. The trial court passed the following order: After hearing arguments of the parties, I am of the opinion that defendant has no defence, but it is moon shine defence. Therefore, a permission can be granted to leave defence to the deserves to be allowed on condition, I pass the following order: 1. The application Exh.34 is allowed for leave to defence to the defendant on following conditions: - (i) The defendant shall deposit an amount of entire ₹ 50 Lacs in the Court in a two instalments on or before next date, in addition to earlier deposited amount of ₹ 20 Lacs. 2. Cost shall be cause in the suit . The High Court felt that the trial court ought to have given proper reasons in support of the impugned order. But it was observed that the correspondences between the parties does show that the application submitted by the writ petitioner could not be allowed and the discretion exercised by the trial court granting leave to defend conditionally i.e. on total depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forthwith.] 3. Procedure for the appearance of defendant. (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him. (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him, for such service. (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the Court may impose conditions in granting leave to defend. In Mrs. Raj Duggal v. Ramesh Kumar Bansal (AIR 1990 SC 2218) it was held as follows: 3. Leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defence, he ought to have leave. Summary judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he outcome of the application . A bare reading of the order shows that the High Court in the earlier occasion took the view, on the consent of parties, that ₹ 20,00,000/- was to be deposited and on deposit being made certain follow up action were to be taken. The fact that the High Court wanted the quantum to be pinned at ₹ 20,00,000/- and not more than that is clear from the fact that the High Court directed refund in case the trial court on consideration of merits came to conclusion that the amount to be deposited was less than ₹ 20,00,000/-. There is no indication that in case the amount was to be more, then the appellant would pay the differential amount. The stand of the appellant that the maximum deposit that could have been directed was fixed at ₹ 20,00,000/- is on a sound footing. The order of the trial court as well as that of the High Court cannot be maintained. However as an interim measure by order dated 26.9.2005 this Court has stayed the operation of the High Court's order subject to deposit of ₹ 20,00,000/-. It is stated that the deposit has already been made. Though we have held the trial Court's order and the High Court&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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