1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8234 OF 2008 M/s Fixity Packing Industries Pvt. Ltd. and others .. Petitioners Versus Udyen Jain (HUF) .. Respondent Shri P.B. Shah i/b Shri A.B. Avhad,for the petitioners Shri Madan, Sr.Counsel i/b Sanjeet Sawant & Mr. Jurgen Shah i/b Mr. Samir Suryawanshi for Respondents CORAM: MRS. MRIDULA BHATKAR, J. Reserved for order on: 29th April, 2009 Pronounced on : 8th May, 2009 J U D G E M E N T 1. Heard learned counsel for the parties. 2. This petition is directed against the order dated 20.10.2008 passed by the 8th Joint Civil Judge, Senior Division, Pune below Exh.17 in Special Summary Civil Suit No.116 of 2007 under Order 37 Rule 3(5) of the Civil Procedure code. 2 3. The present respondent has filed a summary suit against the Petitioners, a priviate limited Company and its Directors for recovery of amount of Rs.2,66,39,028/- as the cheques issued by the petitioners were dishonoured. 4. The learned counsel appearing for the petitioners have submitted that the said Order, passed by the lerned Trial judge, is bad in law. The petitioners have good possible defence and defendant has raised triable issue so no conditional leave should have been imposed by the Trial Court. The learned counsel has argued that the respondent was Chartered Accountant working with the petitioners Company, had mismanaged the funds and had fraudulently acquired two cheques totaling Rs.2,66,39,028/-. The respondent that he had arranged and procured funds for the business of the petitioner is totally false. It was contended that all finance which was procured was in cash and is 3 covered under money lending transaction. He has submitted that the suit filed by the respondent is not only on the basis of the cheques but also on the statement of account and acknowledgement and that letter of confirmation of financial acknowledgment is fake. He has further submitted that the contention of the respondent that two criminal cases are filed by Doly Mistry and Shri Kaikhushu Daruwala, who allegedly have financed to the petitioner company and the said debt was allegedly paid off by the respondent is false. It shows that the respondent has no locus to file summary suit. Further, it was contended that the amount of Rs. 60 lakhs which was allegedly lent by one Mr. Vishal Malhotra is not a legally enforceable loan as it is against the provisions of Bombay Money Lending Act. It was pointed out that there are contradictions in the dates, incidents of lending and repayment of money which supports the bonafides of the defence. 4 5. Learned counsel appearing for the respondent, while adverting the above submissions, has stated that no explanation of the cheques is mentioned in the application for leave to defend. It is submitted that the application for leave to defend should disclose proper defence and whatever contended in the petition was not mentioned in the application for leave to defend. Therefore, the Trial Court has not passed any illegal order of granting conditional leave to defend. He has further submitted that if the cheques were issued and that transaction is not denied, under Section 118 of the NI Act, the prosecution stands in favour of the Respondent. 6. Essence of summary suit is that the defendant as in an ordinary suit not entitled as of right to defend and thus, unreasonable obstruction by defendant is prevented. The present suit is filed as two cheques, drawn on ABN Amro Bank, N. V., M.G. Road, Pune, were dishonoured. The 5 submissions of the lerned counsel for the respondent that while passing the order of leave to defend, the judge has to confine to the contents in the said application are convincing, and the details of all criminal cases and other transactions were not mentioned in the said application. Moreover, the filing of the criminal cases by two persons under N.I. Act for recovery of money, on the contrary supports the case of the respondent regarding loan transaction and fund raising activity. 7. On the point of granting leave, whether conditional or unconditional, the guidelines summed up in the case of Sunil Enterprises and another Vs. SBI Comercial & International Bank Ltd., reported in (1998) 5 Supreme Court Cases 354, in para-4, are considered. "(a) If the defendant satisfies the court that he has a good defence to the claim on merit, the defendant is entitled to unconditional leave to defend. 6 (b) If the defendant raises a tribale issue indicating that he has fair and bonafide or reasonable defence, although not a possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the Court may impose conditions at the time of granting leave to defend--the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security. (d) If the Defendant has no defence, or if the defence is sham or illusory or practically moonshine, 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, the court may show mercy to the defendant by enabling him to try to prove a 7 defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured." 8. Thus, considering the defence and facts in the matter, the learned Trial Court as found triable issue has granted leave to defence. It shows that the defence was not considered as sham and bogus. However, conditional leave is granted. Though the triable issue is raised, having regard to the facts and circumstances, it is not apparently reasonable and fair defence. The learned Trial Judge has not committed any error in granting conditional leave. As such, the order passed by the Ld. Trial Judge cannot be said to be illegal or incorrect and it need not be interfered with. 9. In the result, the petition stands dismissed with no order as to costs. 8 (MRIDULABHATKAR, J.) jpc/-