^ ^^-^ ^ltlCllE REft i ^^^^[:"."^ ^•-^^-•"- IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR W.P. (U/A.227) No. T^6 / 2008 .A PETITIONER DEFENDANT RESPONDENT PLAINTIFF"zM^ ..-^^<^\"^ ^f^:\ r^ ^^ ,,..-;;^)^"0 z^<^^^^ Smt. Kamlesh Shanna^ W/o. Shri Ramesh Sharma, Aged about 44 years, R/o. House No. 29/201, Baghapara, Miri Chowk, Raipur, District Raipur (CG) VERSUS I.C.I.C.I. Bank Limited^ through: its Sangrahan Manager, Shri Renalt Emanual S/o. J. Emanual., Aged about 29 years, Branch Second Floor, Gore Parisar^ Civil Lines, Raipur., District Raipur (CG) .^^ WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA L F^^" ^ ^ HIGH COURT OF CHHATTISGARH AT BTLASPUR WritPetition (227)No. 7130 of2008 PETITIONER Defendaiit RESPONDENT Plamtiff Smt. Kamlesh Sharma VERSUS ICICIBankLimited i fWRIT PETmON UNDER ARTICLE 227 OF THE CONSTITUTION 0]FE^JDIA) ||||(| IIIIW^ CSB: Hon'ble Mr. N.K. Aearwal, J.) [ Present : Shri Manoj Pamnjpe, Advocate for the petitioner. ORAL ORDER (Passedon 28.06.2011) 1. Respondent/plaintiff filed a summary suit under Order 37 of CPC for recovery ofloan amount to the tiine ofRs. 2,17,171/- against the petitioner/defendant. After sendce of notice, the petitioner moved an application under Order 37 R.ule 3(5) read with Section 151 of CPC for grant ofleave to defend. 2. The trial court, vide order impugned, allowed petitioners' application and granted leave to defend subject to condition of fumishing bank guamntee ofthe amoiint equivalent to the amount claimed in the suit. 3. Instant petition filed under Article 227 ofthe Constitution of India calls in question the legality and propriety of the part of order impugned Whereby the trial court granted leave to defend subject to condition offumishing bank guarantee ofthe amount equivalent to the amount claimed in the suit. ! .:p""€'-:'^ y^^ '\ Shss:} 1 m^'yj j ^ •^// ^^.^^'^' 4, hNii"N^ 4. Shri Manoj Paranjpe, learned counsel appearing for the petitioner would submit imposition of condition of fumishing bank guamntee as pre condition of grant of leave to defend, in the tacts and circumstances of the case, is contrary to law and the trial court has failed to exercise its discretion vested in it by law and also failed to appreciate Order 37 Rule 3 (5) of CPC in the light of decisions of Supreme Court in cases ofM/s Sunil Enterprises and another v. SBI Commercial and Intemational Bank Ltd1 and M/s Fixity Packaging Industries Pvt. Ltd. & Ors. v. Udyen Jain (HUF)2. 5. I have heard the counsel appearing for the petitioner and perused the order inipugned. 6. In order to appreciate the contentions raised by Shri Paranjpe, it would be appropriate to re-produce the provisions contained in Order 37 Rule 3(5) ofCPC, which reads as under : "3 (5) The defendant may, at any time within ten days from sei-vice of such sumiiions for judgtiieiit, by affidavit or othei'wise disclosing such facts as may be deemed sufticient to entitle hitii to defend, apply on such sunmions for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such teniis as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refiised unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vcxatious: Provided fiirther that, vvhere a part ofthe amount claimed by the plaintifF is adinitted by the defeiidant to be due fi-om hiiii, leave to defend the suit shall not be granted unless the amount so adniitted to be due is deposited by the defendant in Court." 11998 AIRSCW 2224 22010AIRSCW489 •-:-^..\ 's^ The position in law has been explained by the Supreme Court in cases of Santosh Kumar vs. Mool Singh (1958 SCR 1211), Milkhiram (India) Private Ltd. vs. Chaman Lal Bros (AIR 1965 SC 1698) and Michalec Eng. & Mfg. vs. Bank Equipment Corporation (AIR 1977 SC 577). The propositions laid down in the above decisions have been summed up by the Supreme Court in case of M/s Sunil Enterprises (Supra) which reads as under: 4 "(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend. (b) Ifthe defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defeiidant 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, ifthe affidavit disclosed that at the trial he may be able to establish a defence to the plaintiffs claim, the court may impose conditions at the time of granting leave to defend" the conditions being as to time of trial or more of trial but not as to payment into Court or fiimishing security. (d) Ifthe defendant has no defence, or ifthe defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend. (e) Ifthe defendant has no defetice or tlie defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured/9 8. The Supreme Court in case ofM/s Fixity Packaging Industries Pvt. Ltd, (Supra)has held : ordinarilythe conditions imposed for grantof leave to defend in a suit filed under Order 37 ofCPC should not be unduly onerous when leave to defend is granted. 9. In the instant case, as per trial court's own opinion, petitioner had satisfied the court that he had a good defence to the claim on merits. Therefore, grant of leave to defend by the trial court subject to condition of fumishing bank guarantee of the amount equivalent to ^ the amount claimed in the suit is contra^ to the law laid down by the Supreme Court in the cases referred hereinabove. 10. For the reasons mentioned hereinabove, in the considered opinion of this court, grounds have been made out for interference ofthis court under Article 227 ofthe Constitution of India. Accordingly part of order impugned bywhich condition offiimishing bank guarantee of the amount equivalent to the amount claimed in the suit imposed by the trial court is set aside and instead it is directed that the trial court shall decide the suit as early as possible preferably within a period of / ) six months from the date ofreceipt ofa copy ofthis order. 11. Petitioner is directed to remain present before the trial court on 29.07.2011. 12. Petition is accordingly allowed. No order asto costs. Sahu Sd/- N.K.Agarwal Judge