1980 Supreme(MP) 567

IN THE HIGH COURT OF MADHYA PRADESH
M.L. Malik, J.
Chhatarsingh – Petitioner
Versus
Radha Ballabh Gupta (Dr.). – Respondent
C. Revn. No. 735 of 1979 (J)
Decided On : 26-03-1980

Headnote:Civil Procedure Code, 1908 – O.37, R. 3 (5) – leave to defend under – when may be granted unconditionally – suit based on genuine negotiable instrument – imposition of condition not bad.

        Short Note

       1. In a summary suit under Order 37 C. P. Code, leave to defend has been granted to the defendant subject to his depositing Rs. 10,000 within 15 days and subject to his giving security for the balance of the claim. The defendant, aggrieved by the order, has come up in revision. According to him, he had raised triable issues, his assertions were bona fide and if allowed to prove his case, he would probably succeed. That he should have been granted leave to defend without imosing any conditions.

       Held : The case should normally have been remanded for consideration of the application over again. But the negotiable instruments on the basis of which the claim is advanced, have the prima facie appearance of genuineness and in so far as the principal claim is concerned, the defence may likely turn out illusory. That probably has influenced the mind of the trial Court in imposing the condition of deposit. The defence relating to costs and interest, depending on the proof of the plaintiff being a money – lender to whom the Money Lender's Act applied, is no doubt a triable issue. The imposition of conditions, therefore, can well be justified under the guiding principles AIR 1977 SC 577, relied on. Revision dismissed.