R.S. Chauhan, J.

The petitioner-defendant is aggrieved by the order dated 16.12.2013 passed by Addl. District and Sessions Judge No.5, Jaipur Metropolitan. Jaipur, whereby while granting the leave to the petitioner-defendant for submitting his written statement under Order 37, Rule 3(5) CPC, the learned Judge has imposed the condition that the petitioner-defendant shall give a bank guarantee of Rs.15 lac within a period of one month.

2. Relying on the case of Mechelec Engineers & Manufacturers v. Basic Equipment Corporation [AIR 1997 SC 577], the learned counsel for the petitioner, Mr. Giriraj Bardhar, has contended that in the said case the Hon'ble Supreme Court had relied on the case of Smt. Kiranmoyee Dassi and Another v. Dr. J. Chatterjee, wherein the Hon'ble Supreme Court had laid down the principles applicable to cases under Order 17 CPC. It was clearly held by the Hon'ble Supreme Court that only when the trial court comes to the conclusion that the defence proposed by the defendant is either illusory, or sham, or practically a moonshine, only then the Court would be justified in imposing a condition upon the defendant for permitting him to file his written statement. Secondly, since the petitioner-defendant has raised certain defences which are strong, there are triable issues to be considered and adjudicated by the learned trial court. Therefore, the learned Judge is unjustified in imposing the condition mentioned above. For, if there are, indeed, triable issues, the defence cannot be said to be a sham or illusory. Thirdly, the petitioner-defendant has clearly claimed that the cheques which were allegedly given by him to the respondent-plaintiff. were stolen and with regard to which he had already filed an F.I.R. Moreover, he had also claimed that the respondent-plaintiff is not in a financial position to grant a loan of Rs.45 lac to the petitioner and to his family members, as he himself is an unemployed youth. Therefore, the possibility that loan amount would have been advanced by him and the possibility that the respondent-plaintiff is coming out with a fake case, cannot be ruled out. Hence, according to the learned counsel, since there are triable issues, the learned Judge is not justified in imposing any condition upon the petitioner.

3. On the other hand Mr. Alok Garg, the learned counsel for the respondent-plaintiff, has claimed that there was an agreement entered between the plaintiff and the petitioner-defendant, wherein a particular cheque for an amount of Rs.15 lac was mentioned. The existence of that agreement clearly proves that a loan amount was given by the respondent-plaintiff to the petitioner-defendant. Therefore, the defence being pleaded by the petitioner tantamounts to a sham. Hence, the learned Judge was justified in imposing the condition mentioned above.

4. In rejoinder, the learned counsel for the petitioner has pleaded that in the plaint the respondent-plaintiff has not pleaded that the parties had entered into an agreement. Moreover, even if the agreement does exists, there are ample issues to be decided by the learned trial court. Thus, the imposition of condition of Rs.15 lac is an unreasonable one.

5. Heard the learned counsel for the parties and perused the impugned order as well as the other documents submitted along with the petition, and considered the case law cited at the Bar.

6. The case of Machelec Engineers & Manufacturers (supra) dealt with a suit for recovery under Order 37 CPC. In this case the Hon'ble Supreme Court has referred to the principles enunciated in the case of Smt. Kiranmoyee Dassi and Another (supra),which are as under: -

"(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitles to unconditional leave to defend.

(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign j