S L LUTHRA Vs. NARENDER KUMAR PURI

JUDGEMENT

(1.) This petition is directed against the order dated the 13th of March, 1972, by which the trial court while granting leave to defend a suit covered by order 37, rule 2 of the 'Civil Procedure Code imposed the condition that the defendant should furnish a bank guarantee in the sum of Rs. 3,000.00 by the 28th of March, 1972. The suit had been filed on the basis of a promissory note.

(2.) The counsel appearing for the petitioner has read out to me the affidavit filed before the trial court. The principal defence raised was that the plaintiff was a money-lender who had not got himself registered as such and had not bean submitting six monthly statements of accounts, as required by the Punjab Regulation of Accounts Act. It was stated in the affidavit that the plaintiff should have filed the original pronote along with the plaint. At the same time in another paragraph it was stated that the promote was not sufficiently stamped. The trial court was to determine whether the grounds on which leave to defend was sought raised triable issues or not.

(3.) The suits filed on the basis of bills of exchange hundis and promissory notes were placed in a separate category by the Legislature by providing that such suits will not be allowed to be defended in the ordinary manner and before defending them leave will have to be obtained from the court. The provisions in order 37 of the Civ I Pro. cedure Code (hereinafter called "the Code") indicate that the court trying the suits was firstly to determine whether leave was to be given at all or not. In case she court was to find that no leave was to be given to defend the suit it was to pass a decree in accordance with the claim put forward by the plaintiff. Where, however, the court was to find that the defence raised deserved consideration, then it had to decide as to whether, keeping in view the issues to be tried, leave was to be given unconditionally or on some terms. Sub-rule (2) in rule 3 of order 37 clarifites the Legislative intendment : Order 37 rule 3(2):-