S.B. Civil Writ Petition No.9557/08 Babu Lal & ors. v. Khyali Lal 1 S.B. Civil Writ Petition No.9557/08 Babu Lal & ors. v. Khyali Lal Date of Order:- 2.2.2009 HON'BLE MR.JUSTICE PRAKASH TATIA Mr. Deelip Kawadia for the petitioners. Mr. Manish Shishodia for the respondent. Heard learned counsel for the parties. The petitioners are aggrieved against the order of the trial court dated 1.11.2008 by which in civil suit filed under Order 37 CPC, though the trial court granted leave to defend to the defendants, to defend the suit for recovery of Rs.17,40,000/- but imposed a condition that the defendants should furnish guarantee for the amount of Rs,17,40,000/-. According to the defendant-petitioners, the plaintiff filed the suit on the basis of the promissory note for which the defendant-petitioners clearly stated that said promissory note is forged one and the plaintiff has not stated any circumstance in which huge amount of Rs.17,40,000/-, that too in cash, could have been advanced by the plaintiff to the defendants. The plaintiff also did not disclose his source for said cash amount in his hands. It is submitted that no loan beyond Rs.20,000/- can be recognized under the Income Tax Act. It is also S.B. Civil Writ Petition No.9557/08 Babu Lal & ors. v. Khyali Lal 2 submitted that the defendants who have been shown doing the business jointly but in fact, they are doing separate business and also living separately, however, they are brothers. The defendants also stated that the plaintiff wants to purchase the land of Araji NO.434 and there were other co-sharers also in the said land along with the defendants and to put pressure upon the defendants, suit has been filed by the plaintiff by fabricating the promissory note . The learned counsel for the respondent submitted that the plaintiff submitted the original promissory note and in that situation no triable issue has been raised by the defendants but yet the defendants has been given liberty to defend the suit after furnishing the guarantee for the amount claimed by the plaintiff. It is submitted that in view of the decision of the Hon'ble Apex Court delivered in the case of Southern Sales and Services and others vs. Sauermilch Design and Handles GMBH (MANU/SC/4488/2008), the trial court should have ordered the defendants to deposit the entire suit amount. It is submitted that the writ petition, therefore, may be dismissed. I considered the submissions of the learned counsel for the parties and perused the facts mentioned in the plaintiff and the application for getting to leave to defend the suit and the reasons given by the trial court. I also perused the judgment cited by the learned counsel for the respondent. In judgment relied upon by the learned counsel for the S.B. Civil Writ Petition No.9557/08 Babu Lal & ors. v. Khyali Lal 3 respondent itself, Hon'ble the Apex Court in para 12 held that “as far as the disputed claim is concerned,once the Court comes to a conclusion that there is a triable issue, unconditional leave has to be given to the defendant to defend the suit. However, in view of the second proviso to Sub-rule (5) of Rule 3, any amount of the claim, if admitted by the defendant to be due from him, has to be deposited in Court before the leave to defend a suit can be granted.” It is clear from the plea taken by the defendants that the defendants have not admitted any of the claim of the plaintiff and they have raised questions that the plaintiff failed to show under what circumstances, such huge amount of Rs.17,40,000/- in cash has been advanced to the defendants and further they pleaded that the promissory note is forge one. It will be worthwhile to mention here that defendant's one of the plea is that no advance of more than Rs.20,000/- as cash loan can be recognized under the Income Tax Act. Be it as it may be, prima facie there are triable issues involved in the suit looking to the totality of the facts of the case(without commenting much on facts and merits). Therefore, in my opinion, the trial court committed serious error of law by asking the defendants to submit guarantee for the amount of Rs,17,40,000/-, i.e. for the whole of the amount. In view of the judgment cited by the learned counsel for the respondent himself, this Court is of the view that the defendants, without admitting S.B. Civil Writ Petition No.9557/08 Babu Lal & ors. v. Khyali Lal 4 any of the claim of the plaintiff, have raised triable issue, therefore, they are entitled to be granted leave to defend the suit unconditionally. The writ petition of the petitioner is, therefore, allowed and the order of the trial court dated 1.11.2008 is set aside. The application filed by the defendants seeking leave to defend is allowed. (PRAKASH TATIA)J mlt.