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Judgment
Hon''ble Mrs. Justice B.V. Nagarathna
The plaintiff, in O.S. No. 25927/2007, on the file of the XXXVIth Addl. City Civil Judge, Mayohall, Bangalore, has filed this writ petition assailing the order dated U.S. 2011 passed on an application filed by defendant no. 1 u/s 94(e) reed with 151 of CPC Code. The said application filed by the defendants seeking a direction to the plaintiff to produce better particulars mentioned in the said application consisting of 19 documents was opposed by the plaintiff.
I have heard the Learned Counsel for the petitioner and the learned Senior Counsel appearing for the respondent no. 1.
It is contended on behalf of the plaintiff/ petitioner that the suit is filed under Order XXXVII Rule 1 of the Code of Civil Procedure, The said proceeding is a summary proceeding. In the said suit, leave was grented to the defendants/respondents to defend the suit He further contends that the respondent is seeking as many as 19 documents and that the application filed u/s 94(e) read with 15 of CPC could not have been allowed by the Trial Court at the stage of filing the written statement and If at all the respondent could have availed of such an order at a later stage. He therefore submitted that the order Impugned is unsustainable.
Per contra, learned Senior counsel appearing for the respondent''s counsel submitted that the Bank has taken up a contention that there is a fraud in issuance of the demand draft as well as the letter of credit and therefore the relief claimed by the petitioner/plaintiff cannot be granted. It is in that context the said documents were required for the purpose of substantiating its contention in the written statement and therefore the Trial Court has rightly allowed the application, which order does not call for interference in this writ petition.
Having heard the Learned Counsel on both sides and on perusal of the material on record, I find that the plaintiff has filed the suit under Order XXXVII Rule 1 of CPC. The said proceeding is a summary proceeding based on negotiable. Instruments. Leave to defend the suit has been granted by the Trial Court. When once leave to defend the suit has been granted, it is incumbent upon the defendant to file the written statement Even before filing of the written statement, the defendant cannot seek documents from the plaintiff in order to support its contention with regard to the fraud. The burden of proving fraud is on the defendant so as to non-suit the plaintiff who has filed the suit based on certain negotiable instruments. Therefore, the Trial Court was not right in directing the plaintiff/petitioner to produce better particulars in the form of 19 documents so as to enable the defendant/respondent to file the written statement The said order therefore liable to be quashed. However, both the petitioner and respondent herein can seek better particulars or summon documents at a subsequent stage of the proceedings as and when necessary.
In the result, the writ petition is allowed. The order dated 11.8.2011 passed to O.S. No. 25927/2007 on the file of the XXXVIth Addl. City Civil judge, Maychall, Bangalore, is quashed.
At this stage, Learned Counsel for the respondent submits that respondent may be permitted to file the written statement.
The respondent/defendant is permitted file written statement on or before 22.11.2011 before the Trial Court.