Pooja Pahwa vs Mahinder Singh

R.K.Gauba, J

The impugned order was passed on 01.12.2017 by the trial Judge on the file of the summary suit (CS No. 453/17) instituted by the respondent (the

plaintiff) against the petitioner (the defendant) under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) founded primarily on a document

styled as a promissory note and receipt (copy at page 36 of the paper book), dated 06.04.2016. The defendant (i.e. the petitioner) had moved an

application seeking leave to defend which was considered by the trial judge through the impugned order. Though leave to defend has been granted, the

defendant has been called upon to deposit in the Court an amount of Rs.5.50 lakhs as mentioned in the above-mentioned document dated 06.04.2016

in the form of fixed deposit receipt (FDR), initially taken out for a period of one year with provision for auto renewal, such deposit being a condition

attached to the grant of leave to defend. It is the imposition of the said condition which is sought to be assailed through the petition at hand.

The suit filed by the plaintiff is for recovery of Rs. 6,60,000/-based on the afore-mentioned document. It does appear that in the part of the

document under the heading “promissory noteâ€, there is some error in that the name of the defendant appears even in the space wherein the

name of the creditor was to be mentioned. But then, the document read as a whole, prima facie, confirms, particularly upon perusal of the other

portion under the heading “receiptâ€​, that money had been passed on by the plaintiff to the defendant who acknowledged its receipt on 06.04.2016.

While seeking leave to defend it was pleaded by the defendant/petitioner that on account of friendly relations, she and her husband had been

recipient of financial assistance from the plaintiff. As per her case, the amount due towards the plaintiff as on 15.07.2016 by her and her husband was

in the sum of Rs. 70 lakhs. She stated in para 7 of the said application that the said amount had been “duly repaid†by her on 15.07.2016. In this

context, she would refer to a transaction represented by another document described as Agreement to Sell and Purchase/Bayana dated 15.07.2016

purportedly executed by her for sale of her property described as property bearing no. J-13/29, second floor, Rajouri Garden, New Delhi in favour of

one Jugal Arora (copy filed as Annexure D-1). In the said document, to which the plaintiff of the case purports to be a marginal witness, the

defendant is shown to have received from Jugal Arora, an amount of Rs. 78 lakhs, partly by cheque in the sum of Rs. 8 lakhs and balance in cash in

the sum of Rs. 70 lakhs, the second part having been reflected as “by cash adjustment of previous dealing with Sh. Mahinder Singh, R/o AD-44

Tagore Garden, New Delhi -110027 witness in the same agreementâ€. The defendant also relies on another document styled as “receipt†(copy

Annexure D-2) purportedly executed by her on 15.07.2016 to which the plaintiff of the case is also stated to be a witness where the above-mentioned

acknowledgement of Rs. 70 lakhs “by cash adjustmentâ€​ is reflected.

It may be observed here that the above documents do not clarify in any manner as to what was the “previous dealing†that is to say as to who

was the creditor and who was the debtor in such previous transaction and further as to how it could be treated as “cash adjustment†inasmuch as

there is no document shown executed by the plaintiff acknowledging having received a sum of Rs. 70 lakhs on account of previous debt owed to him

by any of the parties to the Agreement to Sell.

In the reply to the application for leave to defend, the plaintiff stated that the amount of Rs. 70 lakhs was the amount owed to him by the husband of

the defendant rather than the amount owed by her. The fact that the document in the nature of promissory note-cum-receipt has continued to be in the

power and possession of the plaintiff of the case, even after the transaction of 15.07.2016 between the defendant and Jugal Arora as represented by

the said other two documents, prima facie substantiates the case of the plaintiff.

In the above circumstances, there are reasons to suspect that the defence set up by the petitioner in the suit may not be a bona fide one. Thus, the

ruling in Babbar Vision India Pvt. Ltd. vs. Rama Vision Ltd. (2002) 99 DLT 556 (DB) does not assist the petitioner.

In the above facts and circumstances, the condition imposed in the grant of leave to defend by the impugned order cannot be said to be

unreasonable or unfair.

The petition and the accompanying applications filed therewith are dismissed.