Only on raising of triable issues leave to defend can be granted.

1. The party in person is aggrieved by the order imposing a condition of payment of Rs.2,00,000 for grant of leave to defend has filed the present civil revision petition. The respondent though served on 4.7.2001 has not entered appearance. Today, the party in person appeared and argued the matter.

2. Thegrievance of the petitioner is that the court below without considering the two documents, which clearly show that his loan account has been settled, had still refused to grant unconditional leave to defend. The respondent has filed O.S.No.5323 of 1999 under Order 37 of CPC for recovery of a sum of Rs.495915.74 with interest. According to the respondents a sum of Rs.6 lakhs was granted by way of professional credit on 6.1.1997. Subsequently, since the schedule of repayment could not be adhered to, there was rescheduling of the loan on the request of the petitioner by his letter dated 25.2.1999. Subsequently, the earlier loan was closed and fresh loan agreement was entered into on 25.2.1999, whereunder the petitioner was bound to repay the loan in 48 equal monthly instalments of Rs.13,919. Since instead of rescheduling, the petitioner did not repay the loan and the respondent was constrained to file a suit.

3. The petitioner filed I.A.No.18151 of 1999 for leave to defend and produced before the court two documents showing that the respondent had acknowledged the fact that the loan account is closed. Therefore, according to the petitioner, no amount remains to be paid to the respondent and the letter referred to by the respondent, as having been issued by the petitioner seeking rescheduling of the loan, was a fabricated one and if unconditional leave to defend is not granted, he will be put to hardship and he should be given an opportunity to demonstrate not only that the loan has been fully paid, but also fabricated documents have been used by the respondent herein to file a suit. It is also the case of the petitioner that he had filed O.S.No.2977 of 1999 for injunction restraining the respondent not to present the cheque obtained from the petitioner for collection and interim injunction was granted by the City Civil Court, (Vacation Judge), after having satisfied that the petitioner has made out a prima facie case. According to the petitioner, the respondent has till date not vacated the interim injunction and merely filed a vakalat and had not taken any steps thereafter.

4. The petitioner is also aggrieved that his IA.SR.No.43627 dated 3.11.1999 filed under Section 151 of CPC for verification of the genuineness of the letter dated 25.2.1999 has still not been taken on file of the court below.

5. The petitioner reiterated all the averments made in his affidavit in support of the petition to leave to defend and he also referred to the Judgment of the Supreme Court reported in AIR 1977 SC 577, which was followed by this Court in Ramalingam v. Basavalingam, AIR 1991 Mad. 274 wherein principles were laid down while considering the application for granting leave to defend. A perusal of the impugned order shows that the court below, after referring to a letter dated 6.1.1997, which speaks of the closure of the loan, comes to a conclusion that the petitioner is bound to prove that the old loan has been discharged. This is what the learned Judge has said in his Judgment.

In an application for grant of leave to defend, the petitioner is not bound to prove to the court his case. The court is also not called upon at that juncture to test the veracity of the defence set up by the petitioner. What the court must do is to find whether the applicant has raised triable issues and whether defence is not sham or illusory and whether the petitioner has raised such issues, which if proved at that time of trial, will result in dismissal of the suit, if so he is entitled to be given leave to defend.

6. In this case, two documents have been produced by the petitioner, in which there is a categorical statement made by the respondent that