TMI Blog2023 (8) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... hose facts. 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 on uncertainty as to the amount actually due or where the alleged facts are of such nature as to entitle the defendant to interrogate the plaintiff to crossexamine his witnesses should not be denied. Summary judgements under Order 37 should not be granted where serious conflict as to the matter of fact where any difficulty on issues as to law arises, the Court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency. In the present case, this Court finds that the defendant had set up his defence in the written statement and also disclosed the documents in support of his defence. This Court is of the view that the defendant may be given a chance to prove his defence only if the defendant secures the claim of the plaintiff by depositing the amount with the Registrar of this Court. Application disposed off. - The Hon ble Justice Krishna Rao Mr. Rupak Ghosh , Mr. Sankarsan Sarkar Mr. Aditya Kanodiya , Mr. Shayak Mitra For the plaintiff / petitioner Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and requested the plaintiff to not to pursue with the complaint and have issued a cheque being No. 298282 dated January 16, 2017 drawn on Canara Bank, Chowringhee Branch amounting to Rs. 50 lakhs as part payment and also undertook that they will pay the balance dues within January 31, 2017. The cheque issued by the defendants was dishonoured on January 19, 2017 with the remarks Insufficient Funds . After dishonour of cheque, the plaintiff had initiated a proceeding against the defendant under Section 138 of the Negotiable Instruments Act, 1881. 6. Mr. Rupak Ghosh, learned Advocate representing the plaintiff submits that in accordance to the money receipt executed by the defendants dated April 4, 2011, it is admitted that the defendants have received Rs.50 lakhs through RTGS as loan and they will return the said amount with interest at the rate of 17% per annum and subsequently the interest rate was revised at 18% per annum. Till September 30, 2013, the defendants have paid the said interest which admits from the TDS certificate and it further admits from the confirmation of account issued by the defendants where in it was confirmed about the loan amount and the interest thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial loss and was unable to pay interest for the period between October 1, 2013 and March 28, 2014, the defendants had requested for renewal of the loan for a further period of six months but the plaintiff refused to extend the time. He submits that as the plaintiff declined to extend the time for repayment of loan amount, accordingly, it was agreed between the parties sometimes in the month of March 2014 that the defendant No.1 would sell and transfer the right, title and interest of certain properties to the plaintiff at a negotiable consideration amount of Rs. 1,25,00,000/- out of which the amount of Rs.50 lakhs would be retained by the defendant No.1 as earnest money and the plaintiff would pay the balance consideration of Rs. 75 lakhs would be paid back to the defendant no.1 at the time of registration of conveyance deed in favour of the plaintiff or its nominee. Mr. Thaker submits that the description of the property is approximate 4.25 (four point two five) D commercial land situated at Mauza Sihodih, Gaadi Karharbari, P.S - Giridih (M), Paragana - Kharagdih, District Sub Registrar Office and District Giridih comprises in Khata no. 81, Plot No. 758 Part, area recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. 17. Mr. Thaker relied upon the judgment reported in 2004 SCC Online Cal 40 (Central Bank of India vs. P.K Agencies Ltd.) and submitted that it is not necessary that the defendant has to prove that he has a good defence or that this defence must be sufficient to enable him to succeed. It would be enough if he can satisfy that he has a fair or bona fide or reasonable defence although not a positively good defence. 18. Mr. Thaker relied upon the judgment reported in Manu/WB/0467/1985 (Kapil Deo Pandey vs. Vasudeb Devshankar Shukla) passed by the Hon ble Division Bench of this Court and submitted that it may be that the defence may not be positively a good defence but it cannot be held to be unfair or malafide or unreasonable defence or a defence which is bound to fail at the trial. 19. Heard the learned Counsel for the respective parties, perused the materials on record and the judgments relied upon by the parties. The question before this Court in the present case is, whether, the defence set up by the defendants is illusory or sham or prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or defence illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. The aforesaid principles have been repeatedly approved of, adopted and enunciated by different Courts of India including the Supreme Court in Mechelec Engineers (supra) (paragraph 8). In the said decision, the Hon'ble Supreme Court also approved of an old decision of the English Courts in Jacobs vs. Booths Distillery Company (1901) 85 LT 262 (HL) wherein it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. 22. Order 37 Rule 2 of the Code of Civil Procedure which is similar to those of Chapter XIIIA of the Original Side Rules of this Court. Leave to defend the suit brought under Order 37, Rule 2 of the Code of Civil Procedure,1908 is declined where the Court is of the opinion that the grant of leave will merely enable the defendant to prolong the litigation by raising untenable and frivolous def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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