Uma Shankar Kaman Narain vs M.D. Overseas Ltd.

Vijender Jain, J.—This appeal has been filed impugning the order passed by the learned Single Judge in a suit under Order 37 of the Code of Civil Procedure. The appellant filed an application for leave to defend in the suit. The learned Single Judge found the ground taken in the leave to defend application as sham and moonshine holding that the defense that was raised was totally frivolous and vexatious. Therefore, the learned Single Judge dismissed the application for leave to defend and passed a decree in favor of the respondent for an amount of Rs.39,30,856/- along with interest at the rate of 12% p.a. from the date of the suit till realisation.

We had issued notice to the respondent. Learned counsel appearing for the appellant has contended that the application for leave to defend did not deserve to be dismissed. It has been contended before us that the learned Single Judge ought not to have shut the case of the appellant merely on account of the fact that the cheques were issued. It was also imperative to be decided whether the cheques were issued for any consideration or not. Furthermore, it was required to be decided whether the transaction in fact took place between the parties as no sales-tax forms were given by the respondent to the appellant.

We have given our careful consideration to the arguments advanced by learned counsel for both the parties. We feel that the interest of justice would be met if the appellant is directed to deposit the amount of Rs.39,30,856/- with the Registrar General of this Court and the appellant consequently is granted leave to defend the suit. Mr.Valmiki Mehta, learned counsel for the appellant says that appellant requires three-four months'' to deposit the amount. Let the amount be deposited within a period of two months. Accordingly, appellant is granted conditional leave to defend the suit. Mr. Rana, learned counsel for the respondent says that he may be permitted to withdraw the amount which will be deposited by the appellant with the Registrar General of this Court. We are not passing any order with regard to be withdrawal of the said amount. As we have granted conditional leave to defend to the appellant, it will be open to the respondent to move appropriate application before the learned Single Judge for withdrawal of the amount and the learned Single Judge will pass appropriate orders in accordance with law after hearing the counsel for the parties.

In case there is default in the deposit of the amount as indicated above by the appellant the order and decree passed by the learned Single Judge will come into operation.

Let the suit be listed before the learned Single Judge for appropriate orders on 16.5.2006. Parties to appear before the learned Single Judge on 16.5.2006.

Nothing stated in this order shall be taken to be an observation on the merits of the case and the learned Single Judge will decide the case uninfluenced by any observation made in this order. Appeal stands disposed of.