VINOD K.SHARMA, J. - (1.) THIS revision petition has been filed against an order passed by the learned Civil Judge (Senior Division), Gurgaon allowing the application filed by the respondent herein for leave to defend.
(2.) THE petitioner-plaintiff has filed a suit under Order XXXVII of the Code of Civil Procedure (for short the Code) for the recovery of Rs. 11,54,657/- along with pendente lite interest and costs of the suit. The plaintiff in that suit had claimed that the agreement/contract was void because the consent of the petitioner was obtained by fraud and misrepresentation. The agreement was also challenged being opposed to basic policy and was aimed at unjust enrichment and consequently it was prayed that the contract be declared void ab initio in view of the absence of the free-consent of the plaintiff as the same was taken by the defendant by misrepresentation and fraud. The claim of the petitioner in that plaint further was that deductions made by the defendant while refusing the amount to the petitioner are arbitrary illegal and unauthorised and consequently a decree for a sum of Rs. 11,54,657/- was claimed. On notice having been issued to the defendant-respondent application for leave to defend was filed wherein the averments made by the petitioner herein were denied. The learned trial Court came to the conclusion that a reading of the plaint read with the application for leave to defend shows that the defendant has substantial defence to raise and the defence intended to be put up by it is not frivolous and vexatious. The Court also took note of the fact that the execution of the agreement was admitted still the same was challenged being illegal, null and void on the ground of fraud and misrepresentation. Thus, leave to defend was granted.
(3.) MR . A.K. Verma, learned counsel for the petitioner has challenged the finding of the learned trial Court primarily on the ground that the learned Court below ought to have noticed that the challenge to the validity of an agreement on account of petitioner's consent having been obtained by fraud and misrepresentation as observed in para No. 11 of the order, had no bearing for the purpose of adjudication under Order XXXVII of the Code. The contention of the learned counsel for the petitioner was that the learned Judge ought to have appreciated that such challenge could not have become a ground for the grant of leave to defend as the challenge was only to the validity of the agreement and not to the existence of the agreement.;