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IN
THE COURT OF MS. VANDANA; LD. ADJ-08;
DIST. CENTRAL; TIS
HAZARI COURTS, DELHI.
C.S. DJ NO. ____ OF
____0.
IN
THE MATTER OF:
___________________ :
PLAINTIFF
VERSUS
___________________ :
DEFENDANT
N.D.O.H.: 23.07.____4
1.
REPLY
ON BEHALF OF THE PLAINTIFF TO THE APPLICATION FOR LEAVE TO DEFEND FILED BY THE
DEFENDANT. WITH AFFIDAVIT.
2.
REPLY TO APPLICATION FOR CONDONATION OF DELAY. WITH
AFFIDAVIT.
--------------------------------------------------------------------------------------
DELHI PLAINTIFF
DATED: THROUGH
___________________
ADVOCATE
__________-----------------------------------
Mob.No-----------------------------
Email: --------------------------
IN
THE COURT OF MS. VANDANA; LD. ADJ-08;
DIST. CENTRAL; TIS
HAZARI COURTS, DELHI.
C.S. DJ NO. ____ OF
____0.
IN
THE MATTER OF:
___________________ :
PLAINTIFF
VERSUS
___________________ :
DEFENDANT
N.D.O.H.: 23.07.____4
REPLY ON BEHALF OF THE PLAINTIFF TO THE APPLICATION FOR LEAVE TO DEFEND FILED
BY THE DEFENDANT.
MOST RESPECTFULLY
SHOWETH:
PRELIMINARY
OBJECTIONS: -
1. That the
present application is bundle of lies and misrepresentations and does not make
out any case for granting leave to defend the suit and is thus liable to be
dismissed with cost.
2. That on _____ the defendant has been served
the summons, since then he has been continuously appearing, but the defendant
entered the appearance finally on ______ before this Hon’ble Court, and present
leave to defend application has been filed on _______, though time is to be
calculated from -_______ for filing leave to defend. On the last date of
hearing i.e. on ________ Plaintiff submits that he has not received the copy of
the same and also submitted that he already shifted from the previous address.
On this Defendant undertakes to supply the copy of the same again to the
Plaintiff within 7 days from ________, but the Defendant has also failed to
supply the same to the present application under reply within seven days as per
direction of this Hon’ble Court despite the delay in application for leave to
defend the Defendant disobey the order of this Hon’ble Court, as such the leave
to defend filed by the defendant is time barred and cannot be taken on the
record. The defendants has filed an application to condone the delay of 4 days
on the grounds that on ________ the counsel for the Defendant had suffered a
severe muscle spasm leading to the complete immobility of her right hand i.e.
the dominant typing hand. The said plea for condoning delay in filing the
leave to defend is a false and made-up plea. The present application is filed
by the defendants on _______ which is beyond the statutory period. The
defendant has not come out with any proper or substantial ground as to why, the
defendant could not file the leave to defend within the stipulated statutory period
of 10 days as contemplated Order 37 Rule 3(5) of CPC. The plaintiff is entitled
to judgment and decree in his favour on this ground alone.
3. That
even otherwise, defendant is not entitled to leave to defend and the same has
to be refused as leave to defend application does not disclose facts which
indicate that he has substantial defense. The application for leave to defend
has not disclosed any triable issue. Moreover, the defense intended to be put
up by the defendant is totally frivolous and vexatious.
4. It is
submitted that the defendant had been served with the summons of the case on ________
address along with copy of plaint with annexures. It is however stated that the
plaintiff was not obliged and not required under law to supply again once the
copy of the plaint along with annexures has been supplied initially at the time
of summons of the suit to the defendant. The Defendant also failed to file the
leave to defend application within period of 10 days as provided under Order 37
Rule 3(1) of CPC. That in view of the same,
the defendant is not entitled to leave to defend the suit and the plaintiff is entitled
to judgment / decree forthwith.
5. That
with time numerous issued were faced by the Plaintiff as the Defendant had
failed to remit the payment of any amount whatsoever to the Plaintiff, hence,
the Plaintiff repeated requests to the defendant for repay the loan amount and
the plaintiff is in apprehension that the defendant is going to sold out the
mortgaged property and the plaintiff is having no option except to file this
current suit for recovery of Rs.________/- (Rupees _____ Only) along with
interest of 3% per month from the date of execution of the mortgaged deed and
also lodged an police complaint on _________ against the Defendant.
8. That the
defendant came to plaintiff on _________ and demanded a sum of Rs. _______ from
the plaintiff as he was in dire need of the said money and the plaintiff was
having good terms with the defendant and also plaintiff believed on the
defendant as he has purchased two properties from his wife and had paid the
said amount of Rs. ______ to the defendant and the defendant assured to repay
back the same very shortly. The plaintiff agreed to give the amount as loan
with interest of @3% per month wherein the defendant mortgaged his
property “Entire lower ground floor of
the southern side portion of freehold built up property bearing municipal no. ______,
portion of old plot no. ____, area measuring 33.33 sq.yds, along with undivided
proportionate share in the land underneath, duly fitted with electric and water
connection in working order, situated at ________” in the name of plaintiff as
security and for the same, a mortgage deed dated ________, receipt dated ________,
duly executed between the plaintiff and the defendant in the presence of
witnesses and the same was signed by the plaintiff and defendant.
9. That the
defendant being the owner of the property executed the mortgage deed in favour
of plaintiff vide mortgage deed executed on ________ in presence of two witness
namely ________ wherein the defendant agreed not to sale said property without
liquidating the debt amount of plaintiff. The defendant has received a sum of Rs.
_________/- from the plaintiff on account of mortgage of entire above said
mortgaged property and a receipt of said amount was acknowledged and admitted
by defendant on _____ in presence of two witness.
10. That it
is pertinent to mention here that the defendant failed to make payment of the
said amount of money to the plaintiff within the three months’ time as agreed
in the mortgaged deed and when the plaintiff ask for repayment of said amount,
the defendant requested for more time for repayment of same. The plaintiff
demanded his hard-earned money from the defendant, but the defendant always
making one or the other excuses and did not return back the said amount and
rather has been giving the threats to the plaintiff of dire consequences.
12. That the
plaintiff was shocked when the defendant threatened the plaintiff to kill and
finish the plaintiff’s life, thereafter the plaintiff approached the local
Police Station and filed complaint against the defendant. Despite repeat
requests to the defendants for repay the loan amount and the plaintiff is in
apprehension that the defendant is going to sold out the mortgaged property and
the plaintiff is having no option except to file this current suit for recovery
of Rs.___________/- (___________) along with interest of 3% per month from the
date of execution of the mortgaged deed.
13. That the
defendant thus owes a sum of Rs.________/- (________) to the plaintiff towards
the principal amount alone, moreover the defendant is liable to pay overdue
interest on the abovesaid principal amount @ ___ per month as mentioned in the
mortgage deed dated _______.
14. That the
defendant has not appeared before this Hon’ble Court so far and on _________
the defendant appeared before this Hon’ble court and gave a lame excuse that
the defendant has already made the payment to the plaintiff through bank draft
and also has the acknowledgement from the plaintiff, but it is pertinent to
mention here that the defendant didn’t present any acknowledgement or bank
draft details before this Hon’ble Court till date and the defendant has failed
to prove the same, therefore the statement of the defendant may not be
considered by this Hon’ble Court. Hence the opportunity of the defendant to
defend his case may be closed by this Hon’ble court in the interest of justice.
15. That the
application under reply is absolutely frivolous and is devoid of any merits and
the same is liable to be dismissed as the defendant has miserably failed to
make out any ground for the present application.
PARAWISE REPLY ON MERITS:-
1-2. That
the contents of paras 1-2 of the application are wrong and denied. It is denied
that the Defendant in order to seek a leave to defend the summary suit which
has been filed by the Plaintiff on the basis of false, fabricated and concocted
facts.
3.
That
the contents of para 3 of the application are wrong and denied. It is denied
that the Defendant has sufficient grounds which entitles the Defendant to not just defend the present suit but also to successfully
establish before this Hon'ble
Court that the claims
filed by the Plaintiff is nothing but a sheer abuse of the process law. It is further denied that the present suit is nothing
but the abuse of the process
of law and under the
true circumstances prevailing in the instant matter, the Defendant is most likely to succeed in the present suit against the plaintiff.
4.
That
the contents of para 4 of the application are wrong and denied. It is denied
that the suit of the Plaintiff does not comply with ingredients as envisaged in
Order 37 Rule 2 of the Code of Civil Procedure, 1908. It is further denied that
the present suit is not maintainable under Order 37 of Code of Civil Procedure,
1908. It is further denied that the Defendant has clearly herein below
enumerated the facts involved in the present suit which requires extensive
evidence and under no circumstances, the case of the Plaintiff cannot be proved
without the same.
5.
That
the contents of para 5 of the application are wrong and denied. It is denied
that the suit of the Plaintiff is liable to be dismissed as the Plaintiff have
not approached this Hon'ble Court with clean hands as the plaintiff have
deliberately concealed relevant facts and material in order to achieve it
otherwise deceitful design of earning undue profits by misleading this Hon'ble
Court.
6.
That
the contents of para 6 of the application are wrong and denied. It is denied
that the suit filed by the Plaintiff not only suffers from factual lacunae but
also from irreparable legal lacunae. It is further denied that through this
application to seek the leave to defend the Defendant is hereby endeavoring to
bring the said lacunae to the kindest knowledge of this Hon'ble Court.
7.
That
the contents of para 7 of the application are wrong and denied. It is denied
that the present suit has been filed on the basis of false and fabricated facts
and unfortunately enough the Plaintiff has illegally used the legal machinery
as an instrument to commit fraud upon the Defendant. It is further denied that the
Plaintiff seeks the right to file an appropriate application U/s 340 of Cr PC
upon the appropriate stage of this suit.
8.
That
the contents of para 8 of the application are wrong and denied. It is denied
that the entire basis and premise or the suit filed by the Plaintiff revolves
around an unregistered, un-notarized and a fabricated mortgage deed. It is further
denied that the said mortgage deed has been procured and fabricated by the
Plaintiff after obtaining signatures of the Defendant on blank papers on the
pretext of helping the Defendant to obtain a home loan/ loan against property.
9.
That
the contents of para 9 of the application are wrong and denied. It is denied
that the Plaintiff has concealed material facts from this Hon'ble Court. It is
further denied that the Plaintiff has chosen to conceal that in the year 2018,
the Defendant had approached the Plaintiff, his wife and one Sh. _______ in
order to purchase a property for the total consideration of Rs. _________/-
(Rupees ______ Only) at that time the Plaintiff had assured the Defendant that
since he is a property dealer therefore, he has good ties with various banks
and can assist him in getting home loan, loan against property for purchasing
the said property in the same breath the Plaintiff had also sought the original
documents of the property situated at Ground Floor, (area measuring 33.33 sq.
yds.) Southern side portion of the free hold- built up property bearing no. ______
(admeasuring 33.33 Sq. Yard) part of old plot no. ____________ and had also
asked the Defendant to also sign several documents m order the Defendant m order
to seek loan against property/home loan from a banking institution./ NBFC.
10.
That
the contents of para 10 of the application are wrong and denied. It is denied
that thereafter the Defendant, had approached the Plaintiff at multiple counts
in order to inquire about the process of the said loan but the Plaintiff in
order to give direct and true reply choose to dilly dally replying to the same.
It is further denied whereafter, the Defendant herein became hopeless and
started applying loan for purchasing the said property on his own accord. It is
further denied that even at this time the Defendant was hopeful that the
Plaintiff will return the said original documents to him at the time of
registration of the sale deed of the property which was being purchased by the
Defendant from the Plaintiffs wife and one Mrs. __________ since both the
Plaintiff and Defendant had shared a friendly bond but little did the Plaintiff
know that the plaintiff since die very beginning had malice and ulterior
motives in his mind and in order to satisfy his never ending avarice, the
Plaintiff would go on to misuse the said original documents and the signed
blank papers and reseedi tickets.
11.
That
the contents of para 11 of the application are want of knowledge and hence, denied.
12.
That
the contents of para 12 of the application are wrong and denied. It is denied
that though at the time of registration of the said sale deed the Plaintiff was
present as a witness but despite repeated request the Plaintiff in a very cuning
fashion didn’t bring with him the signed blank page, raseedi tickets and the
original documents of the property situated at ___, (admeasuring 33.33 Sq.
Yard) part of old plot no. ____________ and promised to return the same at the
earliest before the wife of the Defendant.
13.
That
the contents of para 13 of the application are wrong and denied. It is denied
that despite the repeated promises on his own part, the Plaintiff miserably
failed to return the said original property’s documents and the signed blank
papers of the Defendant and ultimately on ___________, the Defendant was placed
in the state of shock and awe when he received the summons of the present case
and when he realized that the Plaintiff had illegally used the original
documents of the property of the Defendant and illegally procured and
fabricated an unregistered, unnotarized and illegal mortgage deed over the
signed blank pages given by the Defendant after trusting the Plaintiff for
helping the Defendant in getting a home loan/ loan against property sanctioned.
14.
That
the contents of para 14 of the application are wrong and denied. It is denied
that the Plaintiff has misused the signed blank pages and the original property
documents of the Defendant. It is further denied that the Defendant reserves
the right to initiate appropriate criminal case as well as civil suit against
the Defendant. It is further denied that the Defendant ought to have the
initiated criminal case against the Plaintiff but since the said case is currently
barred as per the doctrine of cutodia legis therefore currently it is
only this Hon'ble Court which currently has the power to initiate criminal
proceedings against the Plaintiff.
15-16.
That
the contents of paras 15-16 of the application are wrong and denied. It is
denied that the amount allegedly claimed by the Plaintiff of a sum of Rs_________/- which was allegedly paid by the Plaintiff via
cash is not even a legal tender in the eyes of law, since the said payment is
way above and beyond Rs. _________/- (Rupees ________).
17-18.
That
the contents of paras 17-18 of the application are wrong and denied. It is
denied that the conduct of the Plaintiff of nor registering the said mortgage
deed in itself is enough to cast a humongous shadow of doubts over the story of
the Plaintiff, if the claim of the Plaintiff was so genuine or if the Plaintiff
had actually paid the said monies to the Defendant, then he ought to have got
the said mortgage deed registered. It is further denied that since the said
mortgage deed is not registered therefore any operation arising thereof is not
legal in the eyes of law.
19-20.
That
the contents of paras 19-20 of the application are wrong and denied. It is
denied that since no presumption can be drawn in the present case on the basis
of the documents filed by the Plaintiff since the alleged mortgage deed which
forms the heart and soul of the false claims of the Plaintiff is unregistered,
unnotarized. It is further denied that the alleged unregistered and unnotarized
false and fabricated mortgage deed cannot be admitted as evidence on the basis
of which the present summary suit has been filed. It is further denied that there
is no amount is due and payable by the Defendant to the Plaintiff.
21-22.
That
the contents of paras 21-22 of the application are wrong and denied. It is
denied that the sole intention of the Plaintiff preferring this suit is to
harass the de illegally and damage hard earned reputation and blackmail the
Defendant in order to extort money unlawfully. It is further denied that great
prejudice would be caused to the defendant if the present application is not
allowed and the Defendant is not given a chance to contest the present suit on
merits.
23-24.
That
the contents of paras 23-24 of the application are wrong and denied. It is
denied that the Defendant has raised triable issues and there is a bonafide,
reasonable defence, as such leave to defend may be granted. It is further
denied that the Defendant has the substantial defence to the claim on merits
and triable issue needs to be raised in order to properly adjudicate the
dispute before this Hon'ble Court. On this ground itself, unconditional leave
to defend may be allowed. It is however stated that the defendant has not
disclose any facts to entitle him for leave to defend the suit. The affidavit
of the defendant does not disclose facts which indicate that he has substantial
defence. The application for leave to defend does not raise any triable issue.
Moreover, the defence intended to be put up by the defendant is totally frivolous
and vexatious.
Prayer
clause of the application under reply is wrong and denied and the defendant is
not entitled for any relief prayed for.
PRAYER:-
In view of the above
reply, that the application for leave to defend is absolutely false and
frivolous and the defendant has miserably failed to make out any defence in his
favour for the grant of relief prayed for and as such this application is
liable to be dismissed with cost in the interest of justice.
The judgment / decree be passed in
favour of the plaintiff and against the defendant.
It is prayed accordingly.
DELHI PLAINTIFF
DATED: THROUGH
___________________
_______
ADVOCATE
Mob.No_____________
Email:
______________
IN
THE COURT OF MS. VANDANA; LD. ADJ-08;
DIST. CENTRAL; TIS
HAZARI COURTS, DELHI.
C.S. DJ NO. ____ OF
____0.
IN
THE MATTER OF:
___________________ :
PLAINTIFF
VERSUS
___________________ :
DEFENDANT
AFFIDAVIT
Affidavit
of Sh. ___________________, S/o SH. _________ R/o _____________, Delhi-110052.,
do hereby solemnly affirm and state as under:-
1.
That
I am the plaintiff in the above noted case and well conversant with the facts
of the case and therefore competent to swear this affidavit.
2.
That
I hereby state that the accompanying reply to the application for leave to
defend has been drafted under my instructions and I have gone through the same
which is true and correct to my knowledge and the contents of the same have not
been repeated for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at New Delhi on ___
day of July, ____4 that the contents of my above affidavit are true and correct
to my knowledge, nothing is untrue therein or concealed there from.
DEPONENT
IN
THE COURT OF MS. VANDANA; LD. ADJ-08;
DIST. CENTRAL; TIS
HAZARI COURTS, DELHI.
C.S. DJ NO. ____ OF
____0.
IN
THE MATTER OF:
___________________ :
PLAINTIFF
VERSUS
___________________ :
DEFENDANT
D.O.H.:
23.07.____4
REPLY
ON BEHALF THE PLAINTIFF TO THE APPLICATION UNDER SECTION 5 OF LIMITATION ACT
FOR CONDONATION OF DELAY.
1. That the application filed by the
defendants are per se false and based on invented facts and is an attempt to
mislead this Hon'ble Court and hence is liable to be dismissed out rightly.
2. That on _________ the defendant has been
served the summons, since then he has been continuously appearing, but the
defendant entered the appearance finally on ________ before this Hon’ble Court,
and present leave to defend application has been filed on _________, though
time is to be calculated from _________ for filing leave to defend. On the last
date of hearing i.e. on _______ Plaintiff submits that he has not received the
copy of the same and also submitted that he already shifted from the previous
address. On this Defendant undertakes to supply the copy of the same again to
the Plaintiff within 7 days from ______, but the Defendant has also failed to
supply the same to the present application under reply within seven days as per
direction of this Hon’ble Court despite the delay in application for leave to
defend the Defendant disobey the order of this Hon’ble Court, as such the leave
to defend filed by the defendant is time barred and cannot be taken on the
record. The defendants has filed an application to condone the delay of 4 days
on the grounds that on _______ the counsel for the Defendant had suffered a
severe muscle spasm leading to the complete immobility of her right hand i.e.
the dominant typing hand. The said plea for condoning delay in
filing the leave to defend is a false and made-up plea. The present application
is filed by the defendants on _______ which is beyond the statutory period. The
defendant has not come out with any proper or substantial ground as to why, the
defendant could not file the leave to defend within the stipulated statutory period
of 10 days as contemplated Order 37 Rule 3(5) of CPC.
3. That the present application filed by the
defendant has been moved in the wrong provision i.e. Section 5 of Limitation
Act which applies to the only applications and appeals and not for the
pleadings / suits, therefore the present application is liable to be dismissed
on this ground alone.
4. That
from the above, it is obvious that the defendant has taken only a false,
vexatious, vague and bald plea is even otherwise, without any substance. It has
been taken only with a view to cover up his negligence in submitting the leave
to defend within time.
5. That
the defendant has failed to make out any case of exceptional hardship to enable
this Court to extend the time for filing leave to defend.
6. That
according to the defendant the leave to defend was filed on __________. It is
submitted that the statutory period for filing leave to defend is 10 days from
the date of service of the summons for judgment, and the defendant is required
to explain the same as to why the leave to defend is filed beyond 10 days. The
defendant has failed to give any such explanation.
7. It
is further submitted that the defendant has not placed any documents on record
to show the grounds or to corroborate the same by way of any evidence which has
cast hindrances in filing the leave to defend within time frame. It is further
submitted that defendant in order to delay the proceedings had deliberately not
filed the reply in time.
PARA
WISE REPLY.
1. That
the contents of para 1 of the application are matter of record, need no reply.
2. That
the contents of para 2 of the application are wrong and denied. It is submitted that the application for leave
to defend application has been filed on _______, though time is to be
calculated from _________ for filing leave to defend. On _________ the
Defendant undertakes to supply the copy of the application for leave to defend to
the Plaintiff within 7 days from the date of order i.e. _____________, but the
Defendant has also failed to supply the same to the present application under
reply within seven days as per direction of this Hon’ble Court despite the
delay in application for leave to defend the Defendant disobey the order of
this Hon’ble Court, as such the leave to defend filed by the defendant is time
barred and cannot be taken on the record. The defendants has filed an
application to condone the delay of 4 days on the grounds that on ___________ the
counsel for the Defendant had suffered a severe muscle spasm leading to the
complete immobility of her right hand i.e. the dominant typing hand. The
said plea for condoning delay in filing the leave to defend is a false and made-up
plea. The present application is filed by the defendants on ________ which is
beyond the statutory period. The defendant has not come out with any proper or
substantial ground as to why, the defendant could not file the leave to defend within
the stipulated statutory period of 10 days as contemplated Order 37 Rule 3(5)
of CPC.
3-8. That
the contents of paras 3-8 of the application are wrong and denied. It is denied
that counsel for the Defendant was prevented from filing the leave to defend
within the stipulated time period. It is further denied that the delay in
filing leave to defend is neither deliberate nor intentional on the part of the
Defendant but is due to good and sufficient reasons. It is further denied that
no prejudice would be caused to the Defendant if the delay is condoned. It is
further denied that the Defendant has always been diligent in pursuing the
matter. It is further denied that the present application is bonafide. It is obvious that the defendant has taken
only a false, vexatious, vague and bald plea and the said plea is even
otherwise, without substance and taken only with a view to cover up his
negligence in submitting the leave to defend within time. It is further submitted that according to the
defendant the leave to defend was filed on ________. It is submitted that the
statutory period for filing leave to defend is 10 days from the date of service
of the summons for judgment, and the defendant is required to explain the same
as to why the leave to defend is filed beyond 10 days. The defendant has failed
to give any such explanation.
PRAYER :-
In the light of the reply
given hereinabove, it is submitted that the present application is an abuse of
the process of law and is liable to be dismissed and hence, it is prayed that
the same may be:
i) Dismissed
with costs and the leave to defend at all filed on record be taken off the
record.
ii) Pass
decree in favour of the plaintiff on the basis of facts contained in the
plaint.
iii) Pass any such further order by this Hon’ble
Court as may deem fit and proper in the interest of justice.
PLACE: DELHI PLAINTIFF
THROUGH
DATED:
___________________
ADVOCATE
_______________---------------------------
Mob.No.--------------------
Email: -----------------------
IN
THE COURT OF MS. VANDANA; LD. ADJ-08;
DIST. CENTRAL; TIS
HAZARI COURTS, DELHI.
C.S. DJ NO. ____ OF
____0.
IN
THE MATTER OF:
___________________ :
PLAINTIFF
VERSUS
___________________ :
DEFENDANT
Affidavit of Sh. ___________________, S/o ----------
R/o -------------, Delhi-110052., do hereby solemnly affirm and state as
under:-
1. That
I am the Plaintiff in the above noted case and am well conversant with the
facts and circumstances of the case and am, therefore, competent to swear this
Affidavit.
2. That
the accompanying reply to the Application under Section 5 of Limitation Act has
been drawn on my instructions. I have read and understood the contents of the
accompanying application and the same are true and correct to my knowledge and
no part of it is false nor anything material has been concealed therein.
DEPONENT
Verified at New Delhi on
this ___ day of July, ____4 that the contents of the above affidavit are true
and correct to the best of my knowledge and nothing material has been concealed
therein.
