The Jammu and Kashmir High Court in the case Mohammad Altaf Mir V/ S Firdous Ahmad Mir observed and has ruled that while the objective of summary suits is to expedite commercial disputes, this cannot come at the cost of denying the defendant the fair opportunity to defend himself.
The bench headed by Justice M A Chowdhary while referring the case Sudin Dilip Talaulikar v. Polycap Wires Private Limited & Ors observed and has stated that when the defence discloses facts of prima facie fair and reasonable defence, unconditional leave has to be granted and it relates to the subjective satisfaction of the Court which being on the basis of the material that may be placed before it and when the said court is satisfied that the defence is plausible or probable and is not sham or moonshine, but still it has some doubt over the defence, then conditional leave may be granted to the Defendant.
The present case revolves around the dispute between the Mohammad Altaf Mir, the appellant, and Firdous Ahmad Mir, the respondent, concerning a judgment and decree passed by the Trial Court in favour of the respondent.
The Trial Court in the case observed and has decreed the suit wherein the court directed the appellant to pay a substantial amount and interest.
The counsel, Advocate Rizwan-u-Zaman Bhat representing the appellant contested the decision taken by the Trial Court wherein it is argued that the court failed to consider crucial aspects.
He also emphasized that the outstanding amount which is payable to the respondent did not exceed for an amount of Rs.30,000, and the Trial Court overlooked the dispute with regards to the execution of the Hundi, a negotiable instrument.
The counsel, Advocate Mr. Syed Sajad Geelani appearing for the respondent argued before the court that that the appellant’s defence was trivial and lacked merit. He contended that the appellant had borrowed a substantial amount and failed to repay, leading to the issuance of the Hundi. The bench headed by Justice Chowdhary in the case observed and has ruled in the favour of the appellants and observed that if the defense discloses a triable issue that is plausible, leave should be granted.
The court in the case held that if the defendant raises triable issues, even if not a positively good defence, he is ordinarily entitled to defend the suit.
The court noted that the appellant’s claims about repayment and the forced signing of the Hundi were plausible and raised triable issues the court held that the Trial Court had erred in categorizing the defence as ‘moonshine’ without properly considering the triable issues.
The court while considering the facts and circumstances of the case observed and has set aside the impugned judgment and decree. Thus, the said case was remanded back to the Trial Court for a fresh trial, with the direction to grant conditional leave to the appellant.
Accordingly, the court allowed the appeal.
