Mr. Nalin Tripathi, Mr. Rakesh Kumar, Mr. Ashiwan Mishra, Mr. Eshan Kumar Saxena & v. RAJESH SHARMA HUF

Judgment

1. The present Petition has been filed on behalf of the Petitioners under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] against the order dated 19.04.2024 passed by learned District Judge- 03 (South West), Dwarka Courts, New Delhi [hereinafter referred to as “Impugned Order”].

2. By the Impugned Order, an Application under Order XXXVII Rule 4 of the CPC [hereinafter referred to as “Application”] for grant of leave to

defend filed by the Petitioners (Defendants before the learned Trial Court) has been allowed by the learned Trial Court granting conditional leave to the Petitioners subject to deposit of the principal amount of Rs.44,81,315/- within eight weeks.

3. This Court had on 14.05.2025, after briefly hearing the parties, passed the following directions: “5. The present Petition has been filed on behalf of the Petitioners under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:06.08.2025 14:45:29 C.R.P. 230/2024 as “CPC”] against the order dated 19.04.2024 passed by learned District Judge-03 (South West), Dwarka Courts, New Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Application under Order XXXVII of the CPC for grant of leave to defend has been allowed by the learned Trial Court.

5.1 The leave to defend has been granted on depositing a sum of Rs.44,81,315/- within 8 weeks. The learned Trial Court has also directed the Petitioners to file their Written Statement within 8 weeks thereof.

6. Learned Counsel for the Petitioners contends that the Impugned Order suffers from an infirmity, in as much as, although various triable issues were raised by the Petitioners, the leave to defend that was granted was subject to deposit of the entire loan amount. Learned Counsel seeks to rely upon the judgment of the Supreme Court in B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corporation & Anr.; (2022) 3 SCC 294, more specifically the paragraph 32.2 (17.1 and 17.2) where it refers to the judgment of IDBI Trusteeship Services Ltd. v. Hubtown Ltd.; (2017) 1 SCC 568, to submit that where defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the defendant is ordinarily entitled to unconditional leave to defend.

6.1 Learned Counsel for the Petitioners further seeks to rely upon his Application seeking leave to defend wherein he has raised several legal issues in this behalf, including that as to whether the absence of mandatory ingredients of Order XXXVII of the CPC makes the suit not maintainable; the learned Trial Court does not have territorial jurisdiction to adjudicate the suit; the suit is bad for non-joinder of parties; whether the Respondent/plaintiff is a registered money lender; whether in the absence of a written contract it can be presumed that defendants are liable to pay interest. Up to 11 legal issues have been raised in the Application for leave to defend.

7. Learned Counsel for the Respondent, on the other hand, has contended that the predecessor-in-interest of the Petitioners took a loan from the Respondents of Rs.40 lacs, which was paid by the Respondent/Plaintiff in two tranches, one Rs.20 lacs on 07.04.2018 and the other Rs. 20 lacs on 19.02.2019, both transferred directly into the bank account of the predecessor-in-interest of the Petitioners. Thereafter, the predecessor-in-interest of the Petitioners passed away. Since the amounts were not returned, the Respondent/Plaintiff filed a suit for Recovery of Money under Order XXXVII of CPC. Learned Counsel for the Respondent seeks to rely upon the email dated 27.05.2021 in this behalf.

8. The Trial Court Record, which has been requisitioned is not correctly bookmarked. The record also shows that the case file is not Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:06.08.2025 14:45:29 C.R.P. 230/2024 bookmarked correctly. The Registry is directed to ensure that the completely bookmarked files are placed before the Court.” [Emphasis Supplied]

4. Learned Counsel for the Petitioners requests for an adjournment. This request is objected to by the learned Counsel for the Respondent (Plaintiff before the learned Trial Court) who submits that after obtaining an interim protection from a predecessor Bench of this Court on 02.08.2024, the Petitioners are either not appearing or taking adjournments.

5. Learned Counsel for the Respondent also seeks to rely upon the order dated 01.05.2025 in this behalf, when another request for adjournment by the Petitioner was granted, subject to payment of costs. It was also directed by the Court on that day that no further adjournment will be granted, as follows: “1. An adjournment slip has been circulated on behalf of the Petitioner to which a no objection has been given by the Respondent.

2. The record reflects that the learned Counsel for the Petitioners sought an adjournment on 20.12.2024 and thereafter, on 25.02.2025, a joint request for an adjournment was made.

2.1 The record also reflects that a Coordinate Bench of this Court by its order dated 02.08.2024 directed that the Impugned Order shall be kept in abeyance till the next date of hearing.

3. Accordingly, an adjournment is granted to the Petitioners, subject to the payment of costs in the sum of Rs. 7,500/- payable directly to the “Bar Council of Delhi-Indigent and Disabled Lawyers Account”. 4. It is clarified that the matter will be heard on the next date of hearing and no further adjournment will be granted to either party on the next date of hearing.” [Emphasis Supplied]

5.1 In view of the aforegoing, the matter is being heard and decided today.

6. Learned Counsel for the Respondent once again contends that the Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:06.08.2025 14:45:29 C.R.P. 230/2024 Impugned Order does not suffer from any infirmity. It is submitted that the learned Trial Court found that there is an admission of liability on behalf of the Petitioners including by their predecessor-in-interest, and taking into account such admission, leave to defend was granted, however subject to the deposit of the amounts as directed. Learned Counsel for the Respondent further submits that the Application does not at any place deny the liability of the Petitioner to make payment of the amount loaned, thus, the Impugned Order, which only directs deposit of the amount prayed for, is not infirm.

7. Learned Counsel for the Respondent further points out that a wrong Plaint has been placed on record by the Petitioners before this Court as Annexure P-2.

8. Annexure P-2 to the Petition, which is stated by the Petitioner to be a copy of the Plaint filed before the learned Trial Court, from the cause title itself, reveals that the Plaint filed before this Court is of a different suit. It is apposite to extract the first page of the Plaint, which sets this out, below: “IN THE COURT OF THE LD. D.J. (COMMERCIAL COURT) (SOUTH-EAST), SAKET DISTRICT COURTS, NEW DELHI CIVIL ORIGINAL JURISDICTION CS. [COMM.] NO. OF 2021 (SUMMARY SUIT UNDER ORDER XXXVII C.P.C., 1908) IN THE MATTER OF: RHYTHM PROFESSIONAL LLP TRHOUGH A / R SH. RAJESH SHARMA VERSUS …..PLAINTIFF PINKI AGARWAL AND ORS. (LEGAL HEIRS OF LATE SH. VARINDER JINDAL) …..DEFENDANTS Value of the suit for the purposes of Jurisdiction Value of the suit for the purposes of Court Fees Rs. 10,08,219/- Rs. 10,08,219/ Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:06.08.2025 14:45:29 C.R.P. 230/2024 Court Fee Paid Rs. 13,000/- SUMMARY SUIT UNDER ORDER XXXVII C.P.C., 1908, ON BEHALF OF THE PLAINTIFF LLP FOR THE RECOVERY OF RS. 10,08,219/- (RS. TEN LAC EIGHT THOUSAND TWO HUNDRED AND NINETEEN ONLY) ALONG WITH PENDETE LITE AND FUTURE INTEREST @ 12% P.A. FROM 01.04.2020 TILL PAYMENT AND/OR DATE OF REALIZATION. RECOVERY AMOUNT Rs. 10,08,219/- COURT FEE PAID: Rs. 13,000/- MOST RESPECTFULLY SHOWETH:

1. The Plaintiff, i.e., Rhythm Professionals LLP, is an LLP having its office B-120, Second Floor, Lajpat Nagar-1, New Delhi-110024. The Plaintiff LLP vide Resolution Dt. 23.06.2021, has appointed Sh. Rajesh Sharma as its Authorized Representative to file and pursue the present suit. (Annexure 1)…” [Emphasis Supplied]

8.1 This Court has examined the Trial Court Record which has been requisitioned. The Plaint as filed before the learned Trial Court is captioned as Rajesh Sharma HUF Through Karta Sh. Rajesh Sharma v. Pinki Agarwal & Ors. Clearly the Petitioners have filed an incorrect Plaint before this Court which reflect an apathy on their part.

9. The only contention that has been raised by the learned Counsel for the Petitioners is that unconditional leave should have been granted in view of the legal objections that have been taken by the Petitioners.

10. The Supreme Court in the judgment in B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corporation & Anr.1 while relying on the judgment in IDBI Trusteeship Services Ltd. v. Hubtown Ltd.2 has set out that in what circumstances leave can be granted and also whether the defendant would be entitled to conditional or unconditional leave. The Supreme Court has held