TALWAR SPINNERS AND ANR. Vs. VEENA TANDON

JUDGEMENT

(1.) THIS order will dispose of Civil Revisions Nos. 2051 to 2053, 2085 to 2087 of 1979. The short question in these civil revision petitions is that if a Court in a summary suit under Order 37, Code of Civil Procedure, comes to a conclusion that the Defendant has a substantial defence to raise and there are triable issues involved in the case, whether it can direct him to furnish security for payment of the amount in suit. The facts in the judgment are being given from Civil Revision Petition No. 2051 of 1979.

(2.) BRIEFLY the facts are that the Plaintiff instituted a suit for recovery of Rs. 19,200 on the basis of a pronote under Order 37 of the Code of Civil Procedure (hereinafter referred to as the Code),, as amended by the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as Amendment Act). After the service of the summons, the Defendants filed an application under Clause (5) of Rule 3 of the above -said order, for permission to defend the suit They stated that they did not execute the pronote which was a forged one. They further stated that it was without consideration and not binding on them. The application was opposed by the Plaintiff. The learned trial Court after hearing the parties came to the conclusion that the Defendants had a substantial defence to raise and that there were triable issues involved in the case. Consequently, it granted leave to them to defend the case on the condition that they would furnish a bank security for payment of the amount and costs of the suit within a period of ten days. The Defendants have come up in revision against that order to this Court.

(3.) THE learned Counsel for the Petitioners -Defendants has contended that the learned trial Court has come to a finding that the Defendants have a substantial defence to raise and there are triable issues involved in the case. He urges that in the aforesaid situation, it was incumbent upon the Court to allow the Petitioners to defend the suit without imposing conditions as to furnishing of any bank guarantee. According to the counsel, the permission granted to defend the case has become merely an illusory one in view of the rider that they should furnish bank security. He sought to support his argument from the observations in Santosh Kumar v. Bhai Mool Singh : A.I.R. 1958 S.C. 321, Mechalec Engineers and Manufacturers v. Basic Equipment Corporation : A.I.R. 1977 S.C. 577, Smt. Shila Vati v. Vijay Kumar etc., 1975 C.L.J. 633 and Manjit Singh v. Manohar Lal Peshawaria, 1977 R.L.R. 28. He also submits that there is no material amendment made in Rule 3 of Order 37 by the Amendment Act and the observations in the aforesaid cases hold good even after the amendment of the Code.