Amarjeet Singh vs Savitri Devi Bhalla

M.K. Sharma, J.

(1) This order shall dispose of I.A. No. 8174/1995 filed by the plaintiff under Order xxxvii, Rule 3(5) of the CPC seeking leave to defend the suit filed by the plaintiff against the defendants under Order xxxvii, CPC.

(2) The plaintiff instituted a suit against the defendants for recovery of Rs. 9,15,000 .00 under Order xxxvii of the Code of Civil Procedure. It is stated that by written agreement dated 9.11.1992 duly signed by both the defendants and the plaintiff the defendant contracted to sell to the plaintiff half portion of their property bearing House No. C-117, New Rajinder Nagar, New Delhi measuring 125/28 sq. yds. for a total sum of Rs. 9,00,000.00 . It is stated that as per the terms and conditions of the said agreement dated 9.11.1992 the defendants were to hand over the actual physical possession of half portion of the property to the plaintiff and that at the time of execution of the agreement to sell the defendant No.2, who is the son of defendant No. 1, received a sum of Rs. 4,00,000.00 out of the total sale consideration of Rs. 9,00,000.00 . It is stated that the defendant No. 2 also executed a proper receipt duly signed by him to the plaintiff.

(3) Since the defendants have failed to hand over possession of the property to the plaintiff in terms of the agreement, the plaintiff called upon the defendant to hand over immediate possession of the suit property and also to complete the required legal formalities for execution of the sale deed in favor of the plaintiff. In spite of receipt of legal notice neither possession has been handed over nor required formalities for execution of the sale deed in favor of the plaintiff were completed nor the advance amount of Rs. 4,00,000.00 Along with interest was paid back to the plaintiff and, accordingly, the present suit has been instituted by the plaintiff under Order xxxvii of the Code of Civil Procedure.

(4) In the present application the defendants have stated that the alleged agreement to sell dated 9.11.1992 is a forged document with the connivance of Smt. Surender Chauhan and Shri R. S. Chauhan. They have specifically stated that neither late Smt. Savitri Devi Bhalla nor Joginder Singh Bhalla, defendant No. 2 in the original plaint (now defendant No. 1) entered into any agreement with the plaintiff nor received the amount of Rs. 4,00,000.00 nor any amount whatsoever.

(5) Having considered the averments made in the application seeking for leave to defend and having regard to the submission of the learned Counsel appearing tortile parties, it appears that the claim made in the suit is based upon the agreement dated 9.11.1992 and the receipt said to have been executed by the original defendant No. 2 (presently defendant No. 1). The defendants, in their application for leave to defend having denied execution of any of the aforesaid documents either by Smt. Savitri Devi Bhalla or by Shri Joginder Singh Bhalla (the present defendant No. 1), in my considered opinion triable issues arise out of the pleadings of the parties.

(6) Under the provisions of Order xxxvii the defendant is entitled to leave to defend on his ability to prove and show that it has a valid defense and triable issues are raised and that its defense is bonafide and not illusory, sham or practically moonshine. In Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, , the Supreme Court approved the five propositions laid down by the Calcutta High Court in Smt. Kiranmoyee Dassi v. Dr. J. Chatterjee; (1945) 49 CW 246 , as the principles applicable to cases under Order xxxvii of the Code of Civil Procedure. The said propositions approved by the Supreme Court provide that in case the defendant is able to satisfy the Court that he has a good defense to the claim on the merits or the defendant is able to raise triable issue indicating that he has a fair, bonafide or a reasonable defense or if the defendant discloses such facts as may be deemed sufficient to entitle him to defend then leave to defend should be granted. While laying down the aforesaid propositions the Court also held that if the defense raised by the defendant is found to be illusory or sham or practically moonshine then the defendant is not entitled to leave to defend.

(7) In the instant case on the facts of the case and pleadings of the parties, it is found that the defendants have been able to make out that they have bonafide and reasonable defense which, gives rise to triable issue. The defense raised by the defendants cannot be said to be illusory or sham. In view of the defense raised by the defendants, in my opinion, they are entitled to grant of leave to defend the suit unconditionally. The application, Therefore, stands allowed. The defendants are granted unconditional leave to defend the suit, and are given 8 weeks'' time to file the written statement with advance copy to the Counsel for the plaintiff to enable him to file replication within 4 weeks thereafter. List this matter before the Joint Registrar on 8.5.1997 for admission/denial of documents.