V. KAMALANATHAN Vs. E.I.D. PARRY LIMITED

JUDGEMENT

(1.) THE defendant in O.S. No. 8890 of 1974 on the file of the City Civil Court, Madras, is the petitioner herein. He seeks to have the order of the II Assistant Judge, City Civil Court, Madras, dated 9th December, 1975, imposing a condition of deposit of Rs. 10,000 on or before 16th January, 1976 for granting him leave to defend the suit, revised. The suit itself was one for recovery of a sum of money due on a promissory note. One of the defences of the petitioner herein was that the promissory note was obtained under coercion, compulsion and undue influence by one Kalyanaraman. The learned II Assistant Judge has discussed this aspect of the matter in paragraph 12 of his order and, after referring to the contentions of the parties, stated towards the end of the paragraph:

(2.) NOTWITHSTANDING this conclusion, in paragraph 13 of the order the learned II Assistant Judge states:

(3.) RELYING on this passage, learned Counsel for the respondent contends that, notwithstanding the conclusion of the learned Judge that there was a triable issue, still he had a discretion to impose the condition, because the Supreme Court itself has laid down that leave must be granted unconditionally only ordinarily, thereby implying that there may be circumstances under which, even if there is a triable issue, leave should not be granted unconditionally. Stated as a general proposition of law, no exception can be taken to the same. But, as cautioned by the Supreme Court, in exercising the discretion, care must be taken to see that real and genuine triable issues are not shut out by unduly severe orders as to deposit. In this case the learned Judge, after having come to the conclusion that there was a triable issue, if he wanted to impose any condition, he should have given reasons as to why he was imposing the condition, notwithstanding his conclusion that the controversy gave rise to a triable issue. There is no finding that the defence was sham or not genuine. Under these circumstances, the learned Judge was obviously not justified in imposing the condition.