TMI Blog2019 (4) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... for being secured, leave to defend can be granted conditionally. There are various factual issues that need to be gone into and the present is not a case for a decree being passed at this stage especially because the matter is one amongst family members and there seems to be some basis for the Defendant No.1 to argue that the land in fact belongs to him - Admittedly, there is no loan agreement and there are no documents admitting liability. However, the encashment of the FDR and the payments made from the bank account of late Shri. Hari Om Rana to his father’s bank account are circumstances that go against the Defendant No.1. It is the settled position in law that if the pleadings of the parties require to be adjudicated by the Court, the exceptional procedure under Order XXXVII CPC should not lead to decreeing of the suit. While there are triable issues which have been raised, the leave to defend cannot also be unconditional. The Plaintiff No. 1 is the widow of late Shri. Hari Om Rana and Plaintiff No. 2 is his daughter. Defendant No. 1 is in control of the entire estate and the estate may be whittled away by the time the suit is tried and adjudicated. Thus, some conditions h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs is that there are various irregularities and unusual transactions which point to the fact that fraud has been committed by the Defendant No. 1 both during the lifetime of late Shri. Hari Om Rana and after his demise. Specific details of the amounts which were revealed as having been paid to Mr. Rampal from the bank account of late Shri. Hari Om Rana vide cheques are as under: i) 01/03/07 638762 ₹ 10,00,000/- ii) 17/05/07 638764 ₹ 15,00,000/- iii) 16/06/07 638768 ₹ 25,00,000/- iv) 08/12/07 Transfer ₹ 1,36,35,000/- 3. The above amount is a total of ₹ 1,86,35,000/- which was given to his father - Rampal. The amounts were paid from bank account No. 65015999965 in which there was also a deposit of ₹ 3,44,27,765/-. It is the case of the Plaintiffs that the said bank account was closed down on 24th December, 2007 and on the same day, another savings bank account was opened in the Defendant No.2 s bank. It is claimed that out of the abovementioned amounts, som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of late Shri. Hari Om Rana almost a year prior to his death. Various details have been given in the application in respect of transactions with third parties for sale of lands and the reasons for withdrawal of the various sums. However, all these dealings etc. were conducted during the lifetime of late Shri. Hari Om Rana. 6. Mr. Pradeep Dewan, learned senior counsel for the Defendant No.1, has submitted that the present is not a case for grant of decree, as the suit is itself barred by limitation. If the amounts paid by late Shri. Hari Om Rana to his father are considered as a loan, since there was no time fixed for the return of the loan, the limitation has begun to run and the loan having been given in 2007, a suit in 2014 is not maintainable. It is further submitted that the amount is not a liquidated sum and a suit under Order XXXVII CPC is not maintainable. The Defendant No. 1 has raised a triable issue. Reliance is placed on the following judgments:- Chander Kanta Bansal vs. Rajinder Singh Anand (2008) 5 SCC 117 and Milkhiram (India) Private Limited and Other vs. Chamanlal Bros AIR 1965 SC 1698. 7. On the other hand, Mr. Aggarwal, learned counsel for the Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are litigations which are already pending between the parties including a suit for partition. Late Shri. Hari Om Rana has died intestate and accordingly has 3 legal heirs i.e. his wife, daughter and his mother. In Civil Suit No 102/2011 the Civil Judge, Gurgaon has declared all three parties as 1/3rd shareholder of the estate of late Shri. Hari Om Rana and a preliminary decree has been passed in respect of a residential house owned by late Shri. Hari Om Rana. In CS(OS) 1073/2011, a suit was filed by the Plaintiffs against HDFC bank. In the said suit, considering the provisions of the Banking Regulation Act, 1949, the Court decreed the suit against the bank in the following terms: - 17. Having regard to the Section 45ZA of the Banking Regulation Act, the settled position of law and the stand taken by the bank that they are prepared to release the amount in favour of the plaintiff no. 1, who is the nominee, subject to the plaintiff no. 1 complying with the necessary formalities, the present suit is decreed on the following terms: (i) it is agreed between the parties that the amounts, which were lying in the bank account of late Sh. Hari Om Rana, will be released to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t: - 14. A bare reading of Section 45ZA of the Banking Regulation Act would show that any depositor, with a Bank, may nominate a person in a prescribed manner, who, in the event of the death of the depositor, would be entitled to return of the money by the Bank. This Section also makes it clear that the payment made by a banking company in accordance with the provisions of this Section shall constitute a full discharge to the banking company of its liability in respect of the deposit. The provision further makes it clear that nothing contained in this Section would affect the right or claim which any other person may have against the nominee to whom the payment is made under this Section. 15. In the case of Ram Chander (Supra) the Apex Court has held that section 45 ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It has also been held that on receipt of the money, the nominee, however, does not become the owner of the money lying in the account is the Banking Regulation Act, 1949, nor Section 45 ZA (2) concerned with the question of succession. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows: 17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit. 17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend. 17.3 . Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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