Interim Order 9

Order Details: COPY OF ORDER
Pdf Text: Page No. 1/6
16 Civ Suit 487/25
RAM VATI Vs. SHRI JAGAT URBAN THRIFT AND CREDIT CO OP
SOCIETY LTD
31.07.2026
Present: Sh. Jagdish, Ld. LAC for the plaintiff.
Sh. Lakshit Tyagi, Ld. Counsel for the defendant.
Matter is listed for order on application for leave to defend.
Put up for orders at 04:00 PM.
Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/31.07.2026
At 04:00 PM
Present: None.
Order on Leave to Defend under Order XXXVII Rule 3 (5) CPC
1. The applicant/defendant (hereinafter ‘applicant’) seeks leave to
defend in the instant suit filed by the plaintiff under Order XXXVII
Code of Civil Procedure, 1908 (hereinafter ‘CPC’).
2. The plaintiff would inter alia contend that plaintiff is a member of
defendant. The defendant is a cooperative society. The plaintiff
works as a house help. The defendant provides savings and
financial assistance services to his members. The plaintiff being a
member of the defendant society availed fixed deposit facility and
made fixed deposit of an amount of Rs. 2 Lacs. This FD was
renewed three times upon the request of defendant society.
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Whenever, the plaintiff would visit the office of defendant the same
would be found locked. After repeated requests the defendant
handed over impugned cheque to the plaintiff of Rs. 1 Lac which
was credited in the account of plaintiff. The maturity value of FD
of plaintiff stands at Rs. 3,14,689/- Thus, after deducting Rs. 1 Lac
the defendant has liability to pay Rs. 2,14,689/- to the plaintiff.
This amount remains to be paid.
3. Per contra, the applicant would submit that the present suit does
not fall within the ambit of order 37 CPC. The applicant submits
that the present suit is barred by Section 70 of Delhi Cooperative
Societies Act. Applicant further submits that the plaintiff has not
given correct maturity value of fixed deposit and proper
adjudication is required to determine the exact value of maturity
amount of the FD.
4. I have intently heard vociferously addressed diametrically opposite
contentions from both parties and perused the case file.
Analysis and Findings
5. Before adverting to decide the application on merits, it is apposite
to refer to the provision contained in Order XXXVII Rule 3 (5)
CPC which reads thus:
(5) The defendant may, at any time within ten days from the
service of such summons for judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to
entitle him to defend, apply on such summons for leave to
defend such suit, and leave to defend may be granted to him
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unconditionally or upon such terms as may appear to the Court
or Judge to be just:
Provided that leave to defend shall not be refused unless the
Court is satisfied that the facts disclosed by the defendant do
not indicate that he has a substantial defence to raise or that the
defence intended to be put up by the defendant is frivolous or
vexatious:
Provided further that, where a part of the amount claimed by the
plaintiff is admitted by the defendant to be due from him, leave
to defend the suit shall not be granted unless the amount so
admitted to be due is deposited by the defendant in Court.
6. The bare reading of provision reveals that leave to defend must be
granted when substantial defence is raised by the defendant.
Conversely, it must not be granted unless substantial defence is
shown to exist. The scales on which the plea to defend should be
scrutinized was exposited by Hon’ble Supreme Court of India in
the case titled as
IDBI Trusteeship Versus Hubtown Ltd,1 wherein
following guidelines were laid:
17.1. If the defendant satisfies the court that he has a
substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign
judgment, and the defendant is entitled to unconditional
leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he
has a fair or reasonable defence, although not a positively
1 (2017) 1 SCC 568
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good defence, the plaintiff is not entitled to sign judgment,
and the defendant is ordinarily entitled to unconditional
leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is
left with the trial Judge about the defendant's good faith, or
the genuineness of the triable issues, the trial Judge may
impose conditions both as to time or mode of trial, as well as
payment into court or furnishing security. Care must be
taken to see that the object of the provisions to assist
expeditious disposal of commercial causes is not defeated.
Care must also be taken to see that such triable issues are not
shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time
or mode of trial, as well as payment into court, or furnishing
security. As such a defence does not raise triable issues,
conditions as to deposit or security or both can extend to the
entire principal sum together with such interest as the court
feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or
raises no genuine triable issues, and the court finds such
defence to be frivolous or vexatious, then leave to defend the
suit shall be refused, and the plaintiff is entitled to judgment
forthwith.
17.6. If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
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defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the amount so
admitted to be due is deposited by the defendant in court.
xxx xxx xxx
(Emphasis Supplied)
7. The factual and legal position be thus, the present application must
now be decided on the anvil of legal principles enunciated above.
8. The careful analysis of the submissions put forth by the applicant
revolves around technical grounds which are applicability of order
37 CPC and Section 70 of Delhi Cooperative Societies Act. While
the submission of applicant has force the same can be adjudicated
only after framing appropriate issues and addressing arguments
over the same.
9. Further, the second limb of defence raised by the applicant pertains
to the value of maturity of the FD of the plaintiff. Perusal of the
record would reveal that the document on which maturity amount
of FD is mentioned needs to be proved because the hand written
copy of a receipt is filed on which there appears to be a stamp of
defendant society. However, the authenticity of the same needs to
be adjudged. Further, it is also be seen whether the suit under Order
37 CPC is maintainable on the basis of impugned FD receipts. This
question of maintainability can only be assessed upon framing
proper issues and after hearing arguments on them.
10.Be that as it may, this court cannot lose sight of the fact that stage
of deciding leave to defend application, the court must confine its
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quest to ascertain whether the applicant has been able raise a triable
or a plausible defence. If triable or probable defence is prima facie
established, the leave to defend should be granted. In this matter,
the defendant has raised jurisdictional issues pertaining to
maintainability of the instant suit. Therefore, I conclude that the
applicant has raised a defence which seems triable.
11.Ergo, for the reasons mentioned above the present application for
leave to defend is allowed unconditionally.
12.The application is disposed of in above terms.
13.Accordingly, the defendant is directed to file the written statement
within stipulated period with affidavit of admission and denial and
advance copy of the same to plaintiff at least 10 days prior to next
date of hearing. Further, plaintiff is at liberty to file replication and
directed to file affidavit of admission and denial with advance copy
to the defendant at least 3 days prior to next date of hearing.
14.Matter be listed for completion of proceedings/framing of issues on
15.09.2026.
Pranat Kumar Joshi
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts,
Delhi/31.07.2026
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