JUDGMENT :

Abhilasha Kumari, J.

Rule in both the petitions. Mr. Lalit M. Patel, learned advocate, waives service of notice of Rule for the respondent-Bank in the petitions.

2. Both these petitions have been preferred by the petitioners under Articles 226 and 227 of the Constitution of India, challenging both the orders dated 15.05.2014, passed by the learned Auxiliary Chamber Judge, Court No. 13, City Civil Court, Ahmedabad, ('the Trial Court') in Civil Misc. Application No. 815 of 2013 (Special Civil Application No.8359 of 2014) and Civil Misc. Application No.136 of 2014 (Special Civil Application No.8360 of 2014), whereby, the ex-parte decrees have been set aside and leave to defend the Summary Suits has been granted to the petitioners upon condition of depositing 25% of the decretal amount of Rs. 14,13,720/- and Rs. 1,18,88,700/-, respectively.

3. As the issue of law involved in both the petitions is similar, the parties are similar and so are the background facts, the petitions have been heard together and are being decided by a common judgment.

4. For the sake of convenience, the facts of Special Civil Application No.8359 of 2014 are being referred to, as they substantially cover the facts of the second petition.

5. Briefly stated, the relevant facts are that the petitioners are the original defendants and the respondent is the original plaintiff. Respondent-Adarsh Co-operative Bank Limit has preferred Summary Suit No.760 of 2013. The said Suit was decreed ex-parte against the petitioners, who did not file an application for leave to defend within the stipulated period of time. The petitioners then preferred an application under the provisions of Order 37 Rule 4 of the Code of Civil Procedure, 1908 ("the Code" for short), for setting aside the ex-parte decree. The Trial Court set aside the ex-parte decree and granted conditional leave to defend to the petitioners, upon condition that the petitioners deposit 25% of the decretal amount, as indicated herein above.

5.1. The Trial Court has stayed the impugned order for a certain period of time, which was extended by this Court from time to time and is operative till date. Aggrieved by the imposition of the above mentioned conditions, the petitioners have approached this Court.

6. Mr. Indravadan Parmar, learned advocate has appeared for the petitioners and has forcefully submitted that:

(1) The impugned judgment is ex-facie contrary to the law on the facts and in the circumstances of the case as well as the material on record, more so when the Suit involves real and genuine triable issues. The Suit brought by the respondent-Bank is based solely upon allegations of breach of trust and fraud, for which the respondent has already filed a criminal complaint, alleging connivance of its Manager, Vijay Harmanbhai Patel, whose services have been terminated by the respondent-Bank. The suit, therefore, does not fall within the purview of Order 37 of the Code and cannot be tried as a Summary Suit.

(2) Allegations of breach of trust and fraud have been levelled by the respondent Bank upon its Manager Vijay Harmanbhai Patel, who is arrayed as defendant No.4 in the Summary Suit. However, the Trial Court has granted unconditional leave to defend to Mr. Vijay Harmanbhai Patel, whereas an onerous condition of deposit of 25% of the decretal amount has been imposed upon the petitioners. The law has not been applied equally by the Trial Court in the same set of facts.

(3) The Suit is not maintainable as a Summary Suit as there was no contract between the petitioners and the respondent Bank, which is evident from the averments of the Suit. Nothing is due or payable to the respondent-Bank from the petitioners, as alleged.

(4) The suit involves genuine, triable issues of substantial defence and this aspect has been clearly noticed by the Trial Court in the impugned order. In the entire judgment, there is no mention at all of any adverse or negative opinion regarding the nature of the defence put up by the petit