CNR No.
HRRH02-000917-2018 CS 580
Surender Singh Vs. Jai Kishan
Present : Sh. R.K. Nandal, counsel for plaintiff.
Sh. S.N. Kaushik, counsel for the defendant.
This order shall dispose of an application U/o XXXVII Rule 3(5) CPC to
grant permission to defend the suit moved by applicant/defendant.
2. It has been contended by the applicant/defendant that above noted suit
has been filed by the plaintiff for recovery of an amount of ₹.4,00,000/- with interest
@ 2% per month, under order 37 CPC. The defendant has not been served as per the
provisions of order 37 Rule 3 sub rule 4 of CPC, as such the present suit is not
maintainable and the suit is not within the time, the same is time barred. The
defendant has not received ₹.4,00,000/- as loan from plaintiff @ 2% per month and
has not executed pronote and receipt as alleged by the plaintiff.
3. It is further submitted by the applicant/defendant that he has
replied the notice sent to him by the plaintiff. The defendant has not played fraud
with the plaintiff as the plaintiff has fails to mention as to how the defendant has
played fraud. The defendant have legal points to defend the suit, thus the suit is
without any cause of action. It is further contended that if the defendant is not
allowed to defend the case and the suit is decided without giving any opportunity of
being heard, the defendant shall suffer irreparable loss and injury. With these
submissions, it is prayed that the application may kindly be allowed and leave of the
court to defend the suit may kindly be granted in favour of the applicant/defendant.
4. On notice, the aforesaid application was replied wherein it has
been contended that the suit is maintainable and the defendant has been served as per
the provisions of order 37 Rule 3 sub rule 4 of CPC. The suit is not time barred as the
same is filed well in time. Para no. 4 of the application is denied by stating that the
defendant has received sum of ₹.4,00,000/- as loan from the plaintiff @ 2% per
month and has executed pronotes and receipt in this regard in presence of witnesses.
5. It is further contended that the defendant is not entitled to defend
the case as the defendant has not raised any prima-facie triable issues and the plaintiff
is legally entitled to recover the amount towards the defendant. With these
submissions, request to dismiss the application has been made.
6. I have heard both the sides at length and perused the record
carefully.
7. It is contention of the applicant that if the defendant is not allowed
to defend the case and the suit is decided without giving any opportunity of being
heard, the defendant shall suffer irreparable loss and injury. Apparently, the applicant
has not cited any specific ground for leave to defend the suit. However, considering
the fact that the amount involved in the present suit is considerable, it would be in the
interest of justice that the defendant be afforded opportunity to defend in the present
suit.
8. Consequently, the application in hand stands allowed and permission is
granted to the defendant to defend the suit subject to condition that he shall furnish
sufficient security to the tune of ₹.4,00,000/ within 15 days from passing of this
order. Accordingly, the application stands disposed off.
9. Nothing herein shall be deemed as expression of opinion on merits
of the case.
Maha Singh Stenographer Gr. III (Ashish Kumar Sharma)
ACJ(SD), Rohtak
(UID No. HR0266)
09.04.2019
Present : Sh. R.K. Nandal, counsel for plaintiff.
Sh. S.N. Kaushik, counsel for the defendant.
Vide my separate order of even date, the application U/o XXXVII Rule
3(5) CPC stands allowed. Now, the matter is adjourned to 22.4.2019 for furnishing of
security for an amount of ₹.4,00,000/ within 15 days as ordered.
Ashish Kumar Sharma
Addl. Civil Judge (Senior Division),
Rohtak 09.04.2019
Maha Singh, Stenographer Gr. III
" I attest to the accuracy and
authenticity of this document."
Digitally signed by MAHA
SINGH
Date: 2019.04.10 17:10:56
+0530
