Vikram Khichi v. Ashok Kumar Order dt & Anr.

Mr.N.A.Rajpurohit, for the appellant. Heard learned counsel. This appeal is directed the against the order dated 3/3/2009, whereby, in a money recovery suit filed under Order 37 CPC while giving leave to defend to the defendants under Order 37 Rule 3(5) CPC, the learned trial court had directed the defendants – present appellants to deposit a sum of Rs.5000/- each totaling to Rs.10,000/- by 9/2/2009, whereas, the suit was filed for recovery of sum of Rs.50,000/- with interest totaling to Rs.66,500/-. Since the defendants failed to deposit the said amount of Rs.10,000/-, the learned trial court decreed the suit against the appellants and even application filed under Order 9 Rule 13 CPC was rejected on 9/11/2010. Assailing these orders, learned counsel for the appellants submits that since it was done on the very first day, therefore, leave to defend may now be granted to the defendants subject to deposit of 50% of the claimed amount of Rs.66,500/- by setting aside the ex-parte decree against him. Considering the submissions made the bar and in view of the facts and circumstances of the case, since loan in question was S.B.CIVIL MISC. APPEAL NO. 473/2011 Vikram Khichi vs. Ashok Kumar & Anr. Order dt:19/4/2011 taken for meeting the medical ailment of mother of the defendant, though this Court is of the view that no interference is called for in the impugned order, however, interest of justice would be met if leave to defend is granted to the defendant appellants subject to deposit of 50% of the decretal sum of Rs.66,500/- i.e. Rs.33,250/- within a period of one month from today. If the said amount is deposited by the appellant defendants, the same may be disbursed to the plaintiff subject to final decision of the suit on furnishing usual undertaking that in case the suit is dismissed, he would refund back the said amount with interest @ 6% p.a. Accordingly, the impugned order dated 9/11/2010 dismissing the application under Order 9 Rule 13 CPC and judgment & ex-parte decree dated 3/3/2009 are set aside. If the written statement is filed by the defendants within one month along with aforesaid deposit, the suit may be tried from that stage. With these observations, the appeal is disposed of. Copy of this order be sent to the opposite side and trial court forthwith. (DR.VINEET KOTHARI), J. item no. 7 baweja/-