Crompton Greaves Ltd. vs N.A. Sangeetha

A.V. Chandrashekara, J.—Heard the learned counsel for the appellant regarding admission. The order dated 19.2.2014 passed in O.S. No. 1632/2011 by the XXX Addl. City Civil Judge, Bangalore, is called in question.

Appellant herein is the plaintiff and the respondent herein is the defendant in the said suit. The plaintiff has filed the said summary suit under Order XXXVII Rules 1 and 2 of CPC for recovery of a sum of Rs. 71,46,829/-. The defendant has filed the application to contest the suit and the said application has been allowed on 19.2.2014. After contest the order so passed is found at paragraph 12 of the impugned order which reads as follows:--

"12. Point No. 2 : In view of my findings on the above point, I proceed to pass the following:--

ORDER

Application filed by the defendant under Order XXXVII Rule 3(5) r/w Sec. 151 of CPC dated 6.6.2011 is allowed. Defendant is permitted to contest the case on merits."

The learned counsel for the appellant is aggrieved on the ground that while allowing the said application no conditions are imposed either with regard to depositing a portion of the amount sought for or furnishing security to the suit claim. After perusing Order XXXVII Rule 5 of CPC it is evident that at any stage of the suit, if the Court is satisfied, by affidavit or otherwise that the defendant is likely to protract the execution that may be passed against him, shall pass appropriate orders.

While considering the application, it is made clear that any of the observation made while passing the impugned order will not come in the way of the Court, passing appropriate orders under Order XXXVII Rule 5 of CPC on the application, which may be filed by the plaintiff during the pendency of the suit.

As per the decision reported in Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, leave to defendant should be granted, however subject to sufficient scrutiny by the Court. In the present case, the learned Judge, after careful perusal of the material placed on record, has come to the conclusion that there is a triable issue in the sense of a fair dispute to be tried, this Court would not interfere with the impugned order.

In the light of the defendant making out a clear case for triable issue, the Court has not passed any order in regard to the security to be furnished by the defendant. Hence the learned counsel appearing for the appellant has relied on a decision of the Apex Court rendered by three Hon''ble Judges in the case of Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, at paragraph it is held as follows:--

"8. In S. Kiranmoyee Dassi v. Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p. 253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37 , C.P. C in the form of the following propositions (at p.253):

(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a 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 the defence is 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."

In view of the above, no interference is called for. The appeal is disposed of at the admission stage itself. Since the suit filed is a summary suit, provided under Order XXXVII Rule 5 of CPC, the learned Trial Judge to dispose of the same, as the Court dealing with it shall expedite the matter without undue delay.