Ramesh Ahuja & Anr vs Chander Kanta Babbar

PRATHIBA M. SINGH, J

The present appeals are against the 9 by which, initially conditional leave was granted and upon the non-compliance of the condition, the suit of the

Plaintiff was decreed. Order dated 29th September, 2016, passed by the Trial Court by which the conditional leave was granted to the

Appellant/Defendant (hereinafter Defendant) in the following terms: -

“16.In the circumstances, it would be appropriate to grant leave to defend to the defendants, but in order to secure the interest of the plaintiff, said

leave would be conditional i.e. subject to deposit of a sum of Rs.1,00,000/- in the form of FDR or in alternative bank guarantee to be furnished within

four weeks in the name of Ld. District &Sessions Judge (HQs), initially for a period of one year, may be extendable, as the case may be.â€​Â

Briefly stated, the Respondents/Plaintiffs (hereinafter Plaintiff) filed the present suit for recovery of a sum of Rs.5,00,000/- (Rupees Five Lakhs)

against the Defendant. It is the case of the Plaintiff that that amount of Rs.5,00,000/- (Rupees Five Lakhs) was extended as friendly loan.

However, the Defendant failed to repay the said loan despite repeated demands and finally a post dated cheque was issued by the Defendant dated

30th December 2014 for Rs.1,00,000/- (Rupees One Lakh). The cheque was presented by the Plaintiff but the same was returned as the Defendant

had closed the bank accounts. The Plaintiff had also preferred a complaint under Section 138 of the Negotiable Instruments Act which is still stated

to be pending. In the meantime, the Plaintiff learnt that the Defendant is likely to dispose of immovable property as described in paragraph 14

because of which the suit was filed.

The Defendant filed an application for leave to defend on various grounds including that the suit raises triable issues and he is, therefore, entitled to

unconditional leave to defend. The said leave to defend application came to be disposed of by the impugned order dated 29th September, 2016 by

which conditional leave was granted as extracted above. The Defendant failed to comply with the conditions imposed by the Court, which

thereafter led to the decree being passed in favour of the Plaintiff vide judgment dated 17th November, 2016.

The present RFA was listed on 1st March, 2017 on which date, this Court directed that the operation of the impugned judgment and decree shall

remain stayed subject to the Defendant depositing a sum of Rs.1,00,000/- (Rupees One Lakh). The said amount was directed to be retained in an

FDR. It has been reported that the said deposit has been made by the Defendant and the amount is lying in an FDR.

On 24th April, 2018, an apprehension was expressed on behalf of the Plaintiff that since the immovable property of the Defendant has been sold

and there is no other security to safeguard the interest of the Plaintiff. The Defendant should be directed to furnish some other immovable

property. The matter was adjourned on a couple of occasions and now the Defendant has produced a sale deed dated 16th May, 2018 registered on

7th June, 2018 by which the Defendants have, purchased in the name of their children, property bearing number No.SF-02, Second Floor, area

measuring 65 square yards out of Khasra No.485 situated within extended Abadi Lal Dora of village Burari, Delhi-110084. The Defendants are

willing to offer the said property as security. The Plaintiff, however, submits that as per clause 18 of the sale deed relating to the said property, it is

clear that Defendants have availed of financial facility from GIC Housing Finance Company Ltd. which therefore has the first charge of the property

and the property has already been mortgaged to them.

This Court, at this stage, is not securing the Plaintiff towards the entire amount claimed in the suit but is also concerned with safeguarding the

interest of the Plaintiff with some form of security so that if the suit is decided in favour of the Plaintiff, there would be some property available.

Considering the objections raised by the Plaintiff, the Defendants are willing to undertake not to dispose of this property without the leave of this

Court. The Defendants shall also inform the Court if GIC Housing Finance Company Ltd. files any proceedings in respect of the said property.

The amount lying deposited in this Court shall be subject to the final decision of the Trial Court. The FDR which is lying with the Registrar

General shall be kept in an automatic renewal mode.

The vendees of this property namely, Divya Ahuja and Mandhir Ahuja are present in this Court. They are the children of Mr. Ramesh Ahuja. They

have been apprised of the order passed. They undertake to abide by the order as recorded above.

The appeal is disposed of. The suits are restored to the position prior to the passing of the judgement and decree dated 17th November, 2016. The

said judgement dated 17th November, 2016 is set aside, as the condition for grant of leave has been complied with. The suit will proceed from the

stage of grant of conditional leave.Â

Parties to appear before the Trial Court on 9th August, 2018.