1 96 fa.1471.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 1471 OF 2011 Gopal Shankarlal Jaju. ... Appellant Versus Praving Kaverilal Bafana. ... Respondent ----- Mr. P.N.Joshi for the Appellant. Mr. Abhay Ostwal for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 10 th October, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 In this appeal, the Appellant – defendant had challenged the judgment and decree passed by the trial Court on 30 th April, 2011. In a summary suit filed by the Respondent by invoking order XXXVII of the Code of Civil Procedure, 1908, the impugned decree was passed in the sum of Rs.9,00,000/- with interest at the rate of 6% per annum from the date of the suit till realization of the decretal amount. 2 96 fa.1471.11 3 It appears that after the service for summons for judgment, the Petitioner did not apply for grant of leave to defend and that is the reason why after recording the evidence, the learned Trial Judge proceeded to pass the impugned decree. 4 The order dated 9 th August, 2011 passed by this Court reads thus: “The learned counsel appearing for the appellant states that appellant is ready and willing to deposit a sum of Rs.5 lakhs with interest thereon at the rate of 6% per annum from the date of the institution of the suit. He submits that subject to deposit of the said amount, order of remand may be passed by granting permission to the appellant to file an application for leave to defend. The learned counsel appearing for the respondent seeks time to take instructions. Stand over till 25 th August, 2011.” 5 On 26 th August, 2011, this Court put the parties to notice that the appeal will be taken up for final disposal at admission stage. 6 As per the statement of the Appellant, he has deposited a total sum of Rs.5,30,000/- with the trial Court. Thus, the Appellant has complied with the statement made before this Court on 9 th August, 3 96 fa.1471.11 2011. There is no dispute regarding deposit a sum of Rs.5,30,000/- with the trial Court by the Appellant. 7 The learned counsel appearing for the Appellant on instructions states that the Appellant has no objection if the said amount is withdrawn by the Respondent subject to final outcome of the suit. 8 As a result of the aforesaid statement, now the Respondent will be entitled to withdraw a sum of Rs.5,30,000/-. The case made out by the Respondent is that he had advanced a sum of Rs.5,00,000/- to the Appellant on 12 th August, 2008 and the Appellant agreed to repay total amount of Rs.9,00,000/-. The suit was filed on 2 nd December, 2010. Thus, going by the case of the Respondent, now he will receive the alleged principal amount with reasonable interest. Hence, an opportunity deserves to be granted to the Appellant to defend the suit. As the Appellant has deposited substantial amount, a liberty deserves to be granted to the Appellant to apply before the trial 4 96 fa.1471.11 Court fro grant of leave to defend the suit. As a substantial amount will be received by the Respondent, the prejudice which may be caused to the Respondent will be minimized. 9 Hence, I pass the following order: i. The impugned judgment and decree dated 30 th April, 2011 is quashed and set aside and the Summary Suit No.60 of 2010 is restored to the file of the trial Court ; ii. The parties are directed to appear before the trial Court on Monday 14 th November, 2011 ; iii. It will be open for the Appellant to apply before the trial Court for grant of leave to defend on the next date. However, any such application filed after 14 th November, 2011 shall not be entertained by the trial Court ; iv. If application for grant of leave to defend is filed by the Appellant on 14 th November, 2011, the same shall be decided as expeditiously as possible by the trial Court after granting 5 96 fa.1471.11 opportunity to the Respondent to contest the same ; v. All contentions of the parties on merits of the said application are kept open ; vi. The order of remand passed by this Court shall not be construed as any expression of opinion on merits of the claim made by the Respondent ; vii. If the Appellant fails to apply for grant of leave to defend within the time fixed as above, the trial Court shall proceed to decide the suit in accordance with law ; viii. It will be open for the Respondent to withdraw the sum of Rs.5,30,000/- deposited by the Appellant with the trial Court. It is made clear that the deposit of the said amount by the Appellant is without prejudice to the rights and contentions of the Appellant in the pending suit ; ix. The withdrawal of the amount by the 6 96 fa.1471.11 Respondent shall be subject to final outcome of the suit ; x. The appeal is partly allowed on above terms ; xi. The Appellant shall pay costs of the appeal to the Respondent quantified at Rs.7,500/-. The amount shall be paid or deposited with the trial Court on or before 14 th November, 2011 ; and xii. Civil Application No.3327 of 2011 and Civil Application No.3328 of 2011 do not survive and the same are disposed of. [ A.S.OKA, J ]