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TMI Blog1965 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... s may from time to time be prescribed. Suits upon bills of exchange, hundis or promissory notes or for liquidated amounts are some of the kinds of suits which can be instituted under this provision. Sub-rule 2 provides that in suits of this kind the defendant shall not defend the suit unless he enters an appearance and obtains leave from the judge as provided in Order 37 so to defend. It further provides that in default of entering an appearance and of his obtaining such leave to defend the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree as prayed for in the plaint. Sub-rules 2 and 3 of Rule 3 of Order 37 as amended by the High Court run thus: (2) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment returnable not less than ten clear days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (3) The defendant may at any time within ten days from the service of such summons for judgment by affidavit or otherwise disclosing such facts as may be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the company will act in consultation with the respondents and also under their control. Another term is that 50 per cent of the profits will be paid to the respondents in consideration of the financial accommodation given by them. The plaint proceeds to state that on account of a change in the political and economic condition in India soon after the agreement was entered it became necessary to revise and alter the terms of the agreement of February 7, 1962 and that a further agreement was arrived at between the parties the terms of which are set out in a letter D/- November 20, 1962 addressed by the company to the respondents. One of the revised terms was that if the business which the company was to do became impossible or obviously unprofitable the agreement dated February 7, 1962 would stand cancelled forthwith and that in that event the company would repay to the respondents on demand the advance made to the company under the first agreement together with interest at 9 per cent per annum from the date of the advance till realisation. The company further agreed to reimburse the respondents for and on account of any loss incurred by them up to the date of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the plaint as well as the affidavits of the appellants that the cause of action for respondents' claim as laid in the suit is prima facie independent of the aforesaid agreement. No doubt they advanced the money by way of financing the export business of the company but the right to repayment was absolute and unconditional. This is made clear by the subsequent agreement executed by the appellants 2 to 4. No doubt the respondents contend that they are also entitled to recover damages from the appellants under the agreement but according to them this claim is in addition to and not in substitution of that based upon the promissory notes and the indenture of guarantee. The suit for its enforcement could, therefore, be instituted under Order 37, Rule 2. A mention may be made of a decision in Bimal Kumari v. Asoka Mitra, , upon which reliance was placed on behalf of the appellants in support of the contention that where the plaintiff is entitled to two reliefs but sues for only one the whole suit is liable to be dismissed. Without expressing any view as to the correctness of the decision it is sufficient to say that what the High Court was dealing with there was a suit in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 7500/- as security. It was urged before the High Court that where a subordinate court /makes an order which is open to appeal or revision it should give some reasons in support of that order. No reasons having been given the order was set aside and the matter was remitted to the City Civil Court for passing a fresh order in accordance with law. While laying down the normal rule it does not appear to have been intended to make it inflexible. Nor again it appears to have been contemplated that elaborate reasons to support the imposition of conditions must be given. In the ease before us the order made is by the High Court itself and not by the subordinate court. No doubt an appeal lay against it under the Letters Patent but that is merely an internal appeal in a High Court, which cannot be likened to an appeal under Section 96 or a revision application under Section 115 of the Code. Moreover Order 49, Rule 3, Sub-rule (5) provides that nothing contained in Rules 1 to 8 of Order 20 will apply to any Chartered High Court in exercise of its ordinary or extraordinary civil jurisdiction. The provision relating to the giving of reasons in support of a decision are to be found in Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit security because he had not adduced any documentary evidence in support of the defence. The stage for evidence had not been reached. Whether the defence raises a triable issue or not has to be ascertained by the Court from the pleadings before it and the affidavits of parties and it is not open to it to call for evidence at that stage. If upon consideration of material placed before it the Court comes to the conclusion that the defence is a sham one or is fantastic or highly improbable it would be justified in putting the defendant upon terms before granting leave to defend. Even when a defence is plausible but is improbable the Court would be justified in coming to the conclusion that the issue is not a triable issue and put the defendant on terms while granting leave to defend. To hold otherwise would make it impossible to give effect to the provisions of Order 37 which have been enacted, as rightly pointed out by Bose, J., to ensure speedy decision in cases of certain types. It will be seen that Order 37, Rule 2 is applicable to what may be compendiously described as commercial causes. Trading and commercial operations are liable to be seriously impeded if, in particular, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to see some relaxation of the strict rule in (1901) 85 LT 262. I think that any Judge who has sat in chambers in R S. C, Order 14 summonses has had the experience of a case in which, although he cannot say for certain that there is not a triable issue, nevertheless he is left with a real doubt about the defendant's good faith, and would like to protect the plaintiff, especially if there is not grave hardship on the defendant in being made to pay money into Court. I should be prepared to accept that there has been a tendency in the last few years to use this condition more often than it has been used in the past, and I think that that is a good tendency; These observations as well as some observations of Chagla, C. J., in Rawalpindi Theatres Private Ltd. v. M/f. Film Group Bombay, 60 Bom LR 1378 at p. 1374, may well be borne in mind by the Court sitting in appeal upon the order of the trial Judge granting conditional leave to defend. It is indeed not easy to say in many oases whether the defence is a genuine one or not and, therefore, it should be left to the discretion of the trial Judge who has experience of such matters both at the bar and the bench to form his own ten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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