B. PRAKASH RAO, J, J.

( 1 ) IN this revision, the case has been referred to the Division Bench by one of us (BPR, J) for an authoritative pronouncement on the question as to whether the non-issuance of a reply notice to the prior notice by the defendant in a summary suit would amount to an admission and bars the defendant to seek leave to defend under sub-rule (5) of rule 3 of Order 37 of the Code of Civil procedure.

( 2 ) BRIEFLY stating, the facts in the case are that the respondent herein has filed a summary suit for recovery of a sum of rs. 25,780/- with future interest from the date of the suit, on the allegation that the defendant for his necessity borrowed a sum of Rs. 15,000. 00 on 16. 6. 1999 agreeing to repay the same with interest at 2% per month and executed a promissory note. In spite of the demands made and issuance of a registered notice on 20. 4. 2002, the defendant did not pay the amount. Hence the suit.

( 3 ) ON appearance, the petitioner- defendant had filed the present application in LA. No. 895 of 2002 in O. S. No. 177 of 2002 on the file of the Principal Junior Civil judge, Narsapur under Order 37, Rule 3 (5) of CPC, seeking leave to defend the suit on the allegations that he never borrowed the amount nor executed the promissory note. In fact, he does not know the plaintiff nor had any acquaintance with him. Further he pointed out that he borrowed a sum of rs. l0,000/- from one Manne Dorayya, who is the attestor of the suit promissory note and who obtained his signature on a blank promissory note by affixing a revenue stamp. However, later the petitioner had paid the said principal amount and also the interest thereon in June 2001 in full and final settlement, but the said promissory note was neither returned to him nor destroyed on the ground that the same is not immediately traceable and it will be delivered to him as and when it is traced. Therefore, the petitioner did not insist for return of the said promissory note immediately. It is only after receipt of the notice from the respondent-plaintiff, he approached the said M. Dorayya and on enquiry he was informed that on the amount borrowed from him, the interest was calculated at 18% per annum, but not at 24% per annum as agreed to and therefore, the difference of amount towards the interest has to be paid. Whereupon, the petitioner agreed to repay the same to said M. Dorayya and therefore, he did not give any reply. However, surprisingly, the said M. Dorayya got the present suit filed by the respondent- plaintiff. It is also his case that the petitioner being an agriculturist, the interest as claimed is wholly unsustainable and he is entitled to the benefit of the Debt Relief laws. Thus there are triable issues. Hence the leave petition. The respondent-plaintiff contested the application denying the allegations.

( 4 ) ON hearing both sides, the Court below dismissed the application principally on the ground that the petitioner did not give any reply to the notice issued by the respondent-plaintiff and therefore, as per the principles laid down by this Court in thota Kanakadurga Varaprasad Rao v. Madapati Chandra Sekhara Reddi, 2002 (3) ald 97 = 2002 (1) ALT 338, the petitioner is not entitled to the leave.

( 5 ) HEARD Sri A. V. Sesha Sai, the learned counsel appearing for the petitioner. Though served, none appeared for the respondent. Sri N. Vijay, the learned Counsel, who has been appointed as amicus curiae, was heard. It is relevant to note the provision of sub-rule (5) Rule 3 of Order 37 of Code of civil Procedure, which reads as follows: (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 unconditionally or upon such terms as may appear to the Court or judge to be just: provided that leave to defend shall be

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