Build Tech. and Another vs Shri Rakesh Jain

With the consent of the parties the matter has been heard and is being disposed of finally.

In the suit filed by the respondent under Order 37 of the Code of Civil Procedure, the petitioner on being served with summons for judgment filed an application under Order 37 Rule 3 (5) of the CPC for grant of leave to defend the suit. The learned trial court after hearing the parties and going through the record had in para 5 of the Judgment observed as under:-

"After hearing both the sides and upon careful perusal of the record of this case and the judgments cited, I find that the signatures on the cheque in question appears to be of a person different than the one who had filled the amount, date and the name in this cheque. This itself shows that the defense raised by the defendants is not frivolous and the present suit cannot be straight away decreed by refusing leave to defend. It is to be seen as to how far the defense raised by the defendants is fair, bonafide and a reasonable defense."

After holding that the defense raised by the respondent was not frivolous and the suit cannot be straight away decreed by refusing leave to defend, the trial Court has observed in para 9 of the judgment that it was prima facie of the opinion that the defense raised by the defendant was illusory and consequently granted leave to the defendant to contest the suit on merits subject to his furnishing bank guarantee of the suit amount. Being aggrieved by this Judgment of the Court, the defendant has filed the present Revision Petition.

I have gone through the record of the case. The learned trial court after having held that the defense raised by the defendant was not frivolous and the suit could not be decreed straight away has clearly erred in holding that the defense raised by the defendant was illusory. It is not understood as to how the Court could come to a finding that the defense raised by the defendant was illusory after it had already held that the defense raised by the defendant was not frivolous and the suit could not be straight away decreed. The Court, in my opinion, after it had held that the defense was not frivolous, ought to have granted unconditional leave to the petitioner to defend the suit on merits. In my opinion, the learned trial court has clearly exceeded its jurisdiction by directing the petitioner to furnish bank guarantee for grant of lave to defend the suit and has thereby caused irreparable injury to the petitioner. The order of the trial court is, accordingly, set aside and the petitioner is granted unconditional leave to defend the suit on merits. The respondent is directed to file written statement in the trial court within four weeks.