1. Heard learned counsel for the petitioners.

2. Rule.

3. Rule is made returnable forthwith with the consent of learned counsel for both the parties.

4. A very short question raised for consideration in this Writ Petition is, "Whether the Summary Suit for recovery of earnest money paid, in pursuance of oral agreement of sale, can be filed under Order 37 Rule 1 of Code of Civil Procedure?.

5. Factual matrix leading to this question are to the effect that the respondent herein has filed Special Civil Suit No. 120 of 2017 before the Court of Civil Judge Senior Division, Pune, contending inter alia that he and the present petitioner is having friendly and family relations since last several years. He was in need of the residential premises. The petitioner-plaintiff put up a proposal of his residential house for sale. Respondent personally visited the said premises and decided to purchase the same for consideration of Rs. 35,00,000/- and as petitioner was badly in need of financial help, respondent immediately transferred an amount of Rs. 10,00,000/- in the bank account without any written agreement. Thereafter on one or the other count, petitioner started raising dispute about execution of agreement of sale, therefore, the respondent was, after issuing necessary notice to the petitioner, constrained to file the suit before the trial Court, for recovery of the amount of Rs. 10,00,000/-plus interest at the rate of 18% per annum, totalling Rs. 2,00,000/-. The entire suit claim was, therefore, for recovery of Rs. 12,00,000/- with further interest thereon.

6. The suit was filed under the provisions of Order 37 Rule (2) of the Code of Civil procedure contending that the suit is simpliciter for the monetary decree, for recovery of the amount and respondent has not claimed any relief, which does not fall within the ambit of Order 37 Rule (2) of the CPC. It was also averred that the petitioner-defendant does not have any defence of civil nature, to defend the suit, as receipt of the amount of Rs. 10,00,000/- is proved, the said amount being directly deposited in the bank account of the petitioner.

7. Petitioner-defendant herein, on his appearance, filed application at Exh. 20, seeking unconditional leave to defend the suit on the count that the suit in the present form is not maintainable.

8. The trial Court, vide its impugned order dated 15.9.2017, allowed the leave to defend to the petitioner, but it was made conditional leave, subject to deposit of the amount of Rs. 5,00,000/- in the Court or subject to giving bank guarantee of Rs. 5,00,000/-, within one month.

9. This order of the trial Court is challenged in this writ petition by learned counsel for the petitioner by submitting that the suit filed in the present form as a Summary suit under Order 37 Rule 1 of CPC, itself is not maintainable as, it is not based on any "written contract" and therefore, the trial Court has committed an error in imposing condition on the petitioner-defendant for defending the suit. According to learned counsel for the petitioner, the trial Court should have treated the suit as Regular Suit and granted unconditional leave to the petitioner to defend the suit.

10. Per contra, learned counsel for the respondent has supported the impugned order passed by the trial Court by submitting that when the petitioner is admitting or otherwise also can not dispute the receipt of the amount of Rs. 10,00,000/- as the said amount is deposited in his bank account and admittedly petitioner has not returned the said amount. The only contention raised by petitioner is that the said amount was received as an investment in Cashew business, however, to that extent there was no material. Hence, the trial Court was justified in granting conditional leave in view of triable question raised by the petitioner.

11. Now as the very maintainability of suit before the trial Court in the present form is in question, it is necessary to consider the provisions of Order 37 rule (1) of the CP