1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 1048 OF 2005 IN SUMMONS FOR JUDGMENT NO. 824 OF 2004 IN SUMMARY SUIT NO. 2849 OF 2004 Ila Anant Bhatt Residing at B-26, Shiv Sadan, Carter Road No.1, Borivali (E), Mumbai – 400 066 .. Appellant ( Org. Defendant ) Vs. Ramesh Chaturdas Sheth residing at E 304, Kamle Vihar, Mahavirnagar, Dhahukarwadi, Kandivali (West), Mumbai – 400 067 ..Respondent ( Org. Plaintiff ) Mr. Harinder Toor with Mr. Subhash Bane i/by Dilip Taur for appellant. Mr. Ramesh Chaturdas Sheth, Respondent, party-in-person present. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. March 10, 2010. ORAL JUDGMENT: ( Per B. H. Marlapalle, J.) 1. This intra court appeal filed under the letters patent arises from the order dated 28/9/2005 passed in Summons for Judgment No. 824 of 2 2004 in Summary Suit No. 2849 of 2004. 2. The present respondent has filed Summary Suit No. 2849 of 2004 for the recovery of Rs.5,90,000/- from the defendant-appellant on the ground that the cheque issued by the defendant in his favour for an amount of Rs.5,00,000/- was dishonoured by her bank. After receiving the Summons for Judgment, the defendant raised the defence that she had not taken any loan as such from the plaintiff and on the contrary, the plaintiff had lured her to join him in havala transactions. It was her case that after reading the matrimonial advertisement issued by the plaintiff and published in the Gujarati newspaper in Mumbai on 19/5/2001, she met the plaintiff along with her sister’s daughter to introduce the said girl to the plaintiff and his son and to explore the possibility of matrimonial alliance. The defendant met the plaintiff on 2-3 occasions in this connection and she had also told him that she is a widow with a marriageable age daughter and did not have a steady source of income. She was doing small jobs of saree-fall bidding and her income was very low. The plaintiff proposed a business relationship with her and told her that in a bank account to be opened in her name, he would deposit cheques from time to time and from the said deposited amount she would issue a bearer cheque so that he could 3 withdaw in cash and for each such cheque deposited and the corresponding cash withdrawn, he would pay her a commission of Rs.7500/-. She further alleged that the plaintiff had told her that some of his acquaintances were regularly doing such transactions and were getting benefits from the same. On 4/9/2001 plaintiff called her to Bank of Baroda, Mandvi Branch, which is located close to his office, introduced her to open savings bank account No. 22071 on the same day. He issued a cheque of Rs.5,00,000/- in her favour which was deposited in the newly opened account on 4/9/2001 itself and as it being a transfer transaction, the money was immediately deposited in her account. The cheque book given to her by the bank was taken over by the plaintiff and he asked her to sign the first cheque i.e. Cheque No. 733031 dated 4/9/2001. The said amount was collected by the plaintiff in cash from the defendant and he paid her a sum of Rs.7500/- by way of commission for this first transaction. She further stated before the trial Judge that plaintiff called her on 6/9/2001 to his office to give some more cheques and, therefore, accompanied by her sister she went to the plaintiff’s office on that day. The plaintiff did not give any cheques, but offered some other relationship, which was declined by her. The defendant alleges that the plaintiff proposed her to have a physical relationship with him and when she declined, he threatened her that her blank cheques were 4 available with him and she will face the music. She, therefore, went to the police station and lodged a complaint. In retaliation, the plaintiff deposited one cheque in his bank account, drawn by him in his favour but which was already signed by her and the cheque was dishonoured. In short, it was contended by the defendant that she did not owe any amount to the plaintiff and the defendant was trying to blackmail her when she refused to fall pray to his demand. 3. The plaintiff has appeared before us in person and argued his case. He has placed on record his written arguments, as well. It has been pointed out by him that as the said cheque was bounced, he filed Criminal Complaint No. 588/S/2003 in the court of Metropolitan Magistrate at Mazgaon against the defendant and the defendant has been held guilty of the offence punishable under Section 138 of the Negotiable Instruments Act as per the Judgment and Order dated 22/9/2009. He relied upon the depositions of the defendant-accused in the said case and submitted that the defendant had accepted that she received a loan of Rs.5,00,000/-. It is his case that for repayment of the said loan, she had issued this cheque which was bounced and, therefore, when she had admitted to have received the amount of Rs.5,00,000/- from the plaintiff by way of a cheque issued by 5 him in her favour, there was no triable defence available to her and the order passed by the learned trial Judge, refusing leave to defend unconditionally does not call for any interference. 4. We have noted that in the impugned order that there are no reasons set out as to why the defendant failed to make out a case of triable defence. Neither it has been stated that the defence taken was doubtful or unbelievable or it was a moonshine defence. Para 2 of the impugned order merely states as under and there are no other reasons in any other part of the order directing the defendant to deposit a sum of Rs.5,90,000/-: “2. However, with a view to given an opportunity to defend the suit, I direct the defendant to deposit a sum of Rs. 5,90,000/- in this court within a period of 4 weeks, failing which the plaintiff will be entitled to a decree. The amount so deposited will be invested by the Prothonotary and Senior Master in fixed deposit in any nationalized bank, initially for a period of three years and renew the same from time to time till further orders.” 6 When an application for leave to defend is filed under Order 37 Rule 3 of CPC, the following principles have been laid down to decide such an application:- (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 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. 7 (d) If the defendant has no defene, 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 defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into court or otherwise secured. 5. In the instant case, the defendant has specifically stated before the trial court that on 6/9/2001 she went to the plaintiff’s office along with her sister – Mrs. Madhuben Suresh Vadia and she may examine her during the trial of the Suit. In our opinion, defence taken by the defendant before the trial court can be neither said to be illusory or sham or practically moonshine. So far as the order of conviction and sentence passed by the learned Metropolitan Magistrate on 22/9/2009 is concerned, we are informed that the defendant – accused has already filed an appeal (Criminal 8 Appeal No. 245 of 2009) and by an order dated 29/10/2009 the order passed by the learned Metropolitan Magistrate has been stayed after the appeal was admitted. 6. Be that as it may, we are satisfied that the defendant has made out a triable defence to oppose the plaintiff’s Suit for recovery of money and, therefore, the impugned unreasoned order is unsustainable. The plaintiff has pointed out that he is a senior citizen and prayed that the trial of the Suit be expedited. This is a reasonable request. 7. In the premises, this appeal succeeds and the same is hereby allowed. The impugned order is quashed and set aside and the defendant is granted unconditional leave to defend Summary Suit No. 2849 of 2004. Trial of the Suit is hereby expedited. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE, J.)