M/S FIXITY PACKAGING INDUSTRIES PVT. LTD. & ORS. versus UDYEN JAIN (HUF)

Citation: [2009] 12 S.C.R. 557 · Decided: 06-08-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

[2009) 12 S.C.R. 557 
• -t 
M/S FIXITY PACKAGING INDUSTRIES PVT. LTD. & ORS. 
A 
v. 
UDYEN JAIN (HUF) 
(Civil Appeal No. 5129 of 2009) 
AUGUST 06, 2009 
B 
[S.B. SINHA AND DEEPAK VERMA, JJ.] 
---t 
Code of Civil Procedure, 1908: Or. 37 - Summary suit -
Leave to defend, conditional or unconditional - Grant of 
conditional leave to defend by trial court - Direction to deposit c 
certain sum out of the total suit claim - Upheld by High Court 
- On appeal, held: If applicant discloses sufficient facts to 
entitle him to leave to defend, court may impose conditions 
as to time of trial or mode of trial but not as to payment into 
court of furnishing security - Conditions imposed should not D 
-.., be unduly onerous - As a result thereof, defendant would not 
be able to defend action for all intent and purpose - Thus, 
order of courts below to be quashed - Order -of High Court 
modified. 
Respondent filed a summary suit against the 
E 
appellant for recovery of certain sum. Appellant had 
. 
.,, issued a cheque in favour of respondent and the same 
was dishonoured on presentation to the bank. Appellant 
filed application for leave to defend. Application was 
F 
allowed subject to deposit of Rs. 2 crores out of the total 
suit claim of Rs. 2,66,39,028/- within the stated period. 
Aggrieved, appellant filed writ petition. High Court upheld 
the order. Hence the present appeal. 
" 
Disposing of the appeal, the Court 
G 
I 
HELD: The finding of the trial judge that leave should 
be granted by way of mercy, cannot be accepted and 
therefore, this Court is not in a position to interfere 
557 
H 
558 
SUPREME COURT REPORTS 
[2009] 12 S.C.R. 
A therewith as the plaintiff-respondent did not challenge 
t 
• 
that aspect of the matter before the High Court. Therefore, 
the ratio laid down in Sunil's case that if the defendant 
discloses such facts as may be deemed sufficient to 
entitle him to defend, that is, if the affidavit discloses that 
B at the trial he may be able to establish a defence to the 
plaintiffs claim the court may impose conditions at the 
time of granting ~9ave to defend the conditions being as 
to time of trial or mode of trial but not as to payment into 
court of furnishing security is applicable to the facts and 
~--
C circumstances of the instant case. Ordinarily the 
conditions imposed for grant of leave to defend in a suit 
filed under Order XXXVll CPC should not be unduly 
onerous when leave to defend is granted. The conditions 
imposed thereunder unsustainably should not be 
D onerous. As a result whereof, the defendant would not 
be able to defend the action for all intent and purpose. 
~ _ 
Each case, however, has to be considered on its own 
merits. Therefore, it is a fit case where while quashing 
order passed by the trial judge as also the High Court, in 
E exercise of jurisdiction under Article 136 of the 
Constitution of India, the impugned order should be 
modified. The appellant is directed to deposit a sum of 
F 
Rs. 1, 10,00,000/- and a further sum of Rs. 90,00,000/-
, • 
before the trial judge. [Para 12] [564-D-E; 564-F-H; 565-
A-B; 565-C-D] 
Suni/ Enterprises and Anr. v. SB/ Commercial and 
International Bank Ltd. (1988) 5 SCC 354, relied on. 
Case Law Reference: 
G 
(1988) 5 sec 354 
Relied on. 
Paras 7 
H 
and 12 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
5129 of 2009. 
FIXITY PACKAGING INDUSTRIES PVT. LTD. & ORS. 559 
v. UDYEN JAIN (HUF) 
,. .. 
From the Judgment & Order dated 8.5.2009 of the High 
A 
Court of Judicature at Bombay in Writ Petition No. 8234 of 
2008. 
P.S. Narasimha, Shwetank, Sailakawal, S. Udaya Kumar 
Sagar, Bina Madhavan for the Appellants. 
B 
Shekhar Naphade, Vinay Navare, Abha R. Sharma for the 
Respondents. 
• -+ 
The Judgment of the Court was delivered by 
S.B. SINHA J. 1. Leave granted. 
c 
2. Defendants in a suit for recovery for a sum of Rs. 
2,66,39,028/- are before us aggrieved by and dissatisfied with 
a judgment and order dated 08.05.2009 passed by the High 
Court of Judicature at Bombay in Writ Petition No. 8234 of 
D 
-:wos. 
3. Respondent herein filed the aforementioned suit inter 
alia on the premise that the cheques issued by the appellants 
herein for the said amounts, when presented to the bank stood 
E 
dishonoured. The suit was filed in terms of Order XX.XVII of the 
Code of Civil Procedure. 
~ "'* 
4. Appellants filed an application praying for leave to 
defend in the said suit. The learned trial judge framed the 
following question for its c
Excerpt shown. Read the full judgment & AI analysis in Lexace.