Advocates appeared :
For the Appellant : A. S. Chouhan
For the Respondent : Rizwan Khan

ORDER : – The petitioners have filed the present petition under Article 227 of the Constitution of India, being aggrieved by impugned order dated 4-3-2020, passed by the 14th Civil Judge Class, I Indore whereby the petitioners have been directed to furnish the bank guarantee of Rs. 3,49,385/-.

2. Brief facts of the case are that the respondent/plaintiff has filed a summary civil proceedings under Order 39, Rule 1(1) and (2) of CIVIL PROCEDURE CODE , 1908 (for short ‘CPC’) for recovery of the amount with the averment mentioned therein against respondents/defendants No. 1 and 2. The respondents/ defendants filed an application for granting leave to defend under Order 37, Rule 3(5) of CIVIL PROCEDURE CODE , but learned trial Court has passed the impugned order dated 4-3-2020 and granted leave to defend with imposing a condition that submitting bank guarantee of sum of Rs. 3,49,385/-. Hence, the petitioner has filed the present petition before this Court.

3. Learned counsel for the petitioner contended that trial Court has imposed condition to furnish bank guarantee, this condition has made impossible to file defence against the plaintiffs case and petitioners are facing grave injustice. The impugned order is perverse and bad in eyes of law.

4. The case of the petitioners covered by the judgment passed by the Hon’ble Apex Court in the case of Nebha Kapoor vs. Jayantilal , AIR 2008 SC 117, Sudin Dilip Talaulikar vs. Polycap Wires Pvt. Ltd. and ors. , AIR 2019 SC 3380 , State Bank of Hyderabad vs. Rabo Bank , AIR 2015 SC 3820 and Sify Ltd. vs. First Flight Couriers Ltd. , 2008(4) M.P.L.J. 15. Hence, he prays that the impugned order be set aside and grant to leave the defend unconditional.

5. Per contra, learned counsel for the respondent has opposed the petition and prays for its rejection by supporting the impugned order and placing reliance upon the judgment of the Hon’ble Apex Court in the case of Uma Shankar Kamal Narain and anr. vs. M. D. Overseas Ltd. , 2007(3) M.P.L.J. 293.

6. I have heard, learned counsel for the parties and perused all the relevant documents filed by both the parties.

7. The Hon’ble Apex Court in the case of Sudin Dilip Talaulikar vs. Polycap Wires Pvt. Ltd. and ors. (supra) has held as under : –

13. In Hubtown Limited (supra), this Court has laid down the principles which should guide exercise of such discretion as follows : –

“...17.1. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit. 17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend. 17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant’s good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into Court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security. 17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into Court,