1 WP 9683/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9683 OF 2010 Arvind Sheshmani Mishra .. Petitioner V/s Premshankar Bhola Mishra .. Respondent Mr. A.A. Garge i/b Ms. Deepali Patil for the petitioner. Mr. B.K. Bali i/b Bali Associates for the respondent. CORAM : D.G. KARNIK, J. DATE : 17TH JUNE 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Bali waives service for the respondent. 3. By consent taken up for hearing. 4. Petitioner is the defendant and respondent is the plaintiff. The respondent filed a suit against the petitioner for recovery of Rs.18,77,596/- being Summary Suit No. 12 of 2009 under Order 37 of the Code of Civil Procedure in the Court of Civil Judge, Senior Division at Kalyan. The petitioner appeared in the suit and applied for leave to defend. The trial Court granted to the petitioner unconditional leave to defend subject to the petitioner 2 WP 9683/2010 depositing in the Court a sum of Rs.5,00,000/-. That order is impugned by the petitioner-defendant in this petition. 5. In Jyotsna vs. T.S. Parekh & Co., 2007 (4) Mh.L.J. 517, a Full Bench of this Court following the decision of the Supreme Court in the case of Machalec Engineering and Manufacturers vs. M/s Basic Equipment Corporation, AIR 1977 SC 577 and Sunil Enterprises vs. S.B.I. Commercial and International Bank Ltd.m (1998) 5 SCC 354 laid down five tests for considering grant of leave to defend. The tests laid down are as under:- “(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) If the defendant raises a triable issue indicating that he has a fair or bona fide 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 may be 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 plaintiffs 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 in to Court or furnishing security. (d) If the defendant has no defence, or if the defence is sham or illusory or practically moon-shine, the 3 WP 9683/2010 defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moon-shine, 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.” 6. The second test laid down by the Full Bench is that where the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend. The question that is required to be considered in this petition whether the petitioner had made out a triable issue indicating that he had fair, bonafide or reasonable defence. 7. The trial Court in para 11 of the impugned order itself has held that the defendant has a fair defence. Para 11 of the decision of the trial Court is quoted below: “11. The aforesaid aspects is a fair dispute to be tried on the basis of the vouchers on which the suit claim is based. The proposed defence raised by the defendant cannot be turned as a practically moonshine. The defendant disclosed same fact, which entitle him to defend the suit. At the same time, by disclosing said fact, defendant admits receiving of money from the plaintiff. In such circumstances, this court is of the opinion that defendant has raised a triable issue, although same is not positively good defence.” 4 WP 9683/2010 In view of the clear and unequivocal finding recorded by the trial Court that the proposed defence raised by the defendant is not a moonshine defence and that he has disclosed some facts which entitle him to defend the suit, the trial Court erred in imposing a condition of deposit of any money, though it is only a part of the total claim. If defendant has a defence which is triable and not moonshine, he is entitled to unconditional leave to defend. 8. For these reasons, the impugned order cannot stand and is required to be set aside and is hereby set aside. The defendant is granted unconditional leave to defend the suit. However, hearing of the suit is expedited. The defendant shall file written statement within 8 weeks hereof. The trial Court after framing the issues shall hear and dispose of the suit as expeditiously as possible and preferably within 2 years hereof. 9. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)