Aravind Kumar, J.

1. This is a plaintiff's writ petition calling in question order dated 18-4-2015 - Annexure-H whereunder Trial Court has granted leave to defendant to defend their case by condoning delay and receiving the written statement on record. I have heard the arguments of Sriyuths B. Phalakshaiah, learned Advocate appearing for petitioners and Sri K.A. Ariga, learned Advocate appearing for respondent.

2. It is the contention of learned Advocate appearing for petitioners that Trial Court could not have granted unconditional leave in a summary suit under Order 37 of Civil Procedure Code, 1908 particularly when defendant has admitted the claim partially and at least to the extent of admission made and Trial Court ought to have put the defendant on terms. In support of his submission, he has relied upon judgment of the Apex Court in the case of Southern Sales and Services and Others v. Sauermilch Design and Handles Gmbh, AIR 2009 SC 320 : (2008) 14 SCC 457.

3. Per contra, Sri K.A. Ariga, learned Advocate appearing for respondent would support the impugned order contending that where a summary suit is filed and leave is sought to defend the suit by filing written statement, Trial Court would be at liberty to find out as to whether there is a triable issue and if it finds from the defence set up by defendant that it is not a frivolous defence, then it can grant unconditional leave without putting defendant on terms and as such, impugned order does not suffer from any infirmity. In support of his submission, he has relied upon the judgment of Apex Court in the case of Neebha Kapoor v. Jayantilal Khandwala and Others, AIR 2008 SC 1117 : (2008)3 SCC 770.

4. In the background of arguments advanced by learned Advocates appearing for parties, when the pleadings are examined, it would indicate that writ petitioners - plaintiffs have instituted a suit under Order 37, Rule 2 read with Section 26 of Civil Procedure Code, 1908 namely, summary suit contending that defendant is due in a sum of Rs. 1,90,00,000/-. Defendant on service of suit summons, appeared and filed written statement and sought leave of the Court to contest the suit on merits contending inter alia that there was a contract between first plaintiff's husband and defendant and defendant had agreed to pay a sum of Rs. 1,90,00,000/- to husband of first plaintiff and had repaid a sum of Rs. 1,50,00,000/- by cash and what remained to be paid was only Rs. 40,00,000/- and as security towards repayment of said amount, 7 cheques had been issued which is now sought to be misused by plaintiffs and as such, Trial Court has accepted the defence raised as a bona fide defence and has also found that there is a triable issue and as such has granted unconditional leave to defend the suit and there is no error committed by Trial Court.

5. Perusal of averments made in the written statement would clearly indicate that defendant in an unequivocal terms has admitted that he is due to the plaintiff in a sum of Rs. 40 lakhs. In his own words, his admission reads as under:

"4. That the averments made xxx Rs. 1,90,00,000/-. But that said cheque was given for the security purpose for Rs. 40,00,000/- only. That is, it is to be noted xxx Rs. 1,50,00,000/-. And for balance of Rs. 40,00,000/- the defendant requested the plaintiff's husband to grant 2 months time. As per the request the plaintiff's agreed to give 2 months time to repay the balance amount of Rs. 40,00,000/- but with a condition that to issue 7 cheques for an amount of Rs. 1,90,00,000/-."

Even in paragraph 12 of written statement, defendant has admitted that he had to pay balance of Rs. 40,00,000/- and had requested first plaintiff's husband to grant two months time and as per request made by defendant, plaintiff's husband is said to have agreed to give two months time to defendant to repay balance amount of Rs. 40,00,000/-. In fact, in the very same paragraph 12, it is admitted by defendant that he is liable to pay plaintiff's husband