TMI Blog2018 (12) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... CM(M) 1019/2018, CM Appl.Nos.35339/2018, 35341/2018, 40748/2018 - - - Dated:- 20-12-2018 - MR. YOGESH KHANNA J. Petitioner Through: Mr. Rajiv Talwar, Mr. B.K. Patra, Mr. Sandeep Khatri and Ms. Prabhkeen Kaur, Advocates Respondent Through: Mr. Harshad V Hameed and Mr. Muammed Siddick, Advocates. YOGESH KHANNA, J. 1. This petition challenges an order dated 04.08.2018 passed in a summary suit under Order XXXVII CPC viz. CS No.150/2018 where the learned Trial Court while granting leave to defend to the petitioner has directed the petitioner to deposit 50% of the suit amount as a condition precedent for grant of such leave. 2. The petitioner has duly complied with the deposit condition as directed. During the course of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner submitted the property at Shimla was already sold in the year 2013 and was not even in existence in 2015 when the alleged bill was raised and that the DLF property was never owned by the petitioner; hence there was no occasion for raising such a huge bill. It was alleged the respondent been a chartered accountant of the petitioner had misused blank signed papers/ cheques handed over to one Amitosh Moitra, a patner in M/s. Moitra Duggal and Associates, chartered accountants. It was alleged the petitioner had never issued any cheque or executed any promissory note in favour of the respondent. It is alleged charging such an huge amount as professional fee, even otherwise, amount to professional misconduct. 5. On the other hand, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence is patently dishonest or so unreasonable that could not be reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned. Reference may also be made to Siri Krishan Bhardwaj Vs. Manohar Lal Gupta AIR 1977 Delhi 226 (DB). It has been held by the Supreme Court in Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524 that if a remedy under CPC is available, a petition under Article 227 of the Constitution of India, does not lie. 7. Regarding contention b) above, it was argued the application for summons for judgment was filed on 15.05.2018 and summons were issued on 25.05.2018 for the next date viz. 04.08.2018 but however, the leave to defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel for the respondent then referred to paras No.6 7 of the leave to defend application (page No.162) filed by the petitioner wherein she asserted the respondent is a partner of M/s.Moitra Duggal and Associates and the cheque in question was never issued and that she had handed over certain signed blank papers and the cheque in question to one Amitosh Moitra of the said firm, so that Sh.Moitra, chartered accountant could deal with her tax related issues and pay necessary tax(es). This was against the statement made by her to the notice under Section 251 Cr.P.C. wherein she alleged handing over of those signed cheques and papers not to Amitosh Moitra but to Rohit Duggal viz., the respondent herein. 10. The petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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