GHASITARAM BAJAJ Vs. RAJ KAMAL RADIO ELECTRONIC

JUDGEMENT

(1.) Order XXXVII rule 3 Civil Procedure Code read as follows :-

(2.) . Rules 3 (1) lays down two sets of circumstances the existence of either of which would entitle the Court to give leave to appear and to defend the suit. The defence must disclose either of these two circumstances, namely, (1) which would make it incumbent on the holder to prove consideration or (2) such other facts as the Court any deem sufficient to support the application. If leave is to be granted for any of the above two reasons it may be either unconditional or conditional. But if any of the above to reasons is not apparent from the defence pleaded by the defendant in the written statement and/or documents on record, then the leave has to be refused. At this stage only the averments of the defendants and other admitted documents on record have to be seen. The averments of the defendant may be assumed to be true unless they are rebutted by other admitted facts on record. At this stage there is no question of appreciation of evidence or believing or disbelieving the averments of the parties.

(3.) . The suit before the trial judge was based on two documents which are 'hundis' stamped with stamps of Rs. 5 00 each The document are stamped and are dated 12th August, 1972. Bach of them is in favour of the plaintiff for a sum of Rs 10,00000. Each of them is admitted to bear the signatures of the defendant. The plaintiff sues for the recovery of Rs 20,400.00 being the consideration of the 'hundis' namely Rs. 20,000.00 plus interest at Rs. 1.00 per cent per annum. In defence the defendant stated that he had signed blank 'hundis' on the stamp forms. He said that this was as a collateral secuirty for the price of goods which the defendant was buying from a partnership firm of which the plaintiff was a partner. He said that the price was paid up by him to the partnership on 11th August, 1972 and nothing was therefore due to the plaintiff on the basis of these two 'hundis'. He, therefore, sought the leave of the Court to appear and defend the suit under Order XXX Vll rule 2 Code of Civil Procedure