The court emphasizes the necessity for defendants to provide security when granted leave to defend in summary suits to safeguard the interests of the plaintiff.

JUDGMENT

The issues involved in these two original petitions are intrinsically connected and the original petitions are hence disposed of together.

2. O.P(C).No.969 of 2022 has been filed challenging the order dated 08.04.2022 whereby the trial court has granted leave to defend the suit which has been filed under Order XXXVII of the Code of Civil Procedure . Ext.P1 is the plaint in O.S.No.348 of 2021 on the file of the Munsiff Court, Kannur. The suit was filed for recovery of a sum of Rs.6,27,392/- and the claim was based on a cheque issued by the defendant to the plaintiff. Ext.P2 is the petition seeking leave to defend. The affidavit in support of the petition says that the plaintiff was a manager appointed by the defendant under him and there is no necessity to get a loan from the plaintiff and the defendant owes no debt to plaintiff. It is stated that the cheques mentioned in the list of documents were not executed by the defendant and the handwriting is also not that of the defendant. The affidavit also says about a case before the JFCM, Kannur, initiated under Section 138 of the Negotiable Instruments Act .

3. O.P(C).No.975 of 2022 is filed against the order dated 08.04.2022 in I.A.No.03 of 2021 in O.S.No.340 of 2021 seeking similar relief as aforesaid. Ext.P1 is the plaint in O.S.No.340 of 2021 which has been filed under Order XXXVII and placing reliance on a promissory note and cheque. Ext.P3 is the petition for leave. The contents of the affidavit in support of the petition are similar to the one in O.S.No.348 of 2021. The court below, by Ext.P5 order, found that the rule is to grant unconditional leave in cases where there is a fair and reasonable defence against the plaintiff. The court found that from the documents produced along with the suit and affidavit filed, it can be seen that the execution and issuance of cheque is disputed and hence there is good, fair and reasonable defence available to the defendant. On the basis of the above findings, the court below granted leave to both the suits unconditionally.

4. The contention of the petitioner is that the affidavit in support of the petition does not spell out any particular reason to come to a conclusion that a defence has been put forth. It is submitted that as far as O.S.No.348 of 2021 is concerned, the entire amount which is included in the cheque were transferred through Bank by the plaintiff to the defendant and it is to repay the said amount that the cheque was issued. As far as O.S.No.340 of 2021 is concerned, it is submitted that there was initially a pronote executed at the time of obtaining the amount and thereafter a cheque was issued to discharge the pronote. It is submitted that on the basis of the affidavit which has been filed, the court could not have come to a conclusion that leave to defend should be granted. It is further submitted that as far as the amount involved in O.S.No.340 of 2021 is concerned, the respondent has already been found guilty in proceedings initiated under Section 138 of the Negotiable Instruments Act , which would again go to show that the cheques issued are genuine. As far as the proceedings under initiated with regard to the amounts due in O.S.No.348 of 2021 is concerned, an application had been filed before the Magistrate Court for sending the cheque for expert opinion which were allowed. The petitioner has preferred Crl.M.C.No.9803 of 2023 against the order passed by the Magistrate on 02.11.2023 and the proceedings have been stayed by this Court. The counsel for the petitioner submits that in such circumstances, the court should have while granting leave to defend, directed the respondent to furnish security for the amount involved. The counsel for