B.K.MEHTA - (1.)A short but interesting question arises in this revision application as to what are the correct principles which govern the grant or refusal of leave to defend summary suits in context of the amended provisions of Order 37 Rules 1 and 3 of the Civil Procedure Code. The question arises in the following circumstances: The plaintiff-Bank which is opponent No. 1 before me filed Summary Suit No. 2672 of 1977 on August 16 1977 against the petitioners and respondent Nos. 2 3 and 4 therein for recovery of Rs. 5 83 28 Ps. being the amount due and payable at the foot of the various accounts viz. Demand Cash Credits Factory Type); Demand Cash Credit (Machinery Type); Medium Term Loan A/c against machinery and Demand Cash Credit against book debts which accounts were opened in course of certain facilities provided by the plaintiff-Bank to petitioner No. 2 which was a firm at the relevant time of the suit transactions. The plaintiff-Bank has also prayed for interim injunction by taking out a Notice of Motion in the said suit at the time of filing the suit restraining the petitioners and respondents Nos. 2 to 4 herein from dealing with or disposing of the properties movable as well as immovable offered ky way of security to the Bank. The plaintiff-Bank has also taken out a Summons for judgment as the suit was a suit of summary nature. The petitioners and respondents Nos. 2 3 and therein altered follow accordance and sought leave of the Court to defined the sale. Broadly the leave was sought on three grounds. It was urged in the first instance that having regard to the nature of the transactions between the parties it was not competent for the plaintiFfBank to file summary slit under Order 37 Rule 1 of the Civil Procedure Code. Secondly in any case inasmuch as it was common ground between the parties that the petitioner No. 2-firm had for obtaining the facilities under the different accordance pledged and hypothecated moveables under different accounts and therefore the security hiving been furnished in a sum greater than the allow prayed for in the suit the leave should be granted by the Court un and tonally. Thirdly it was contended that since there was a dispute about the amount of interest and the rate thereof there was a triable issue and therefore the Court should permit the defendant to defend the suit unconditionally.
(2.)None of the above contentions impressed the Chamber Judge of the City Civil Court Ahmedabad before whom this Summary Suit No. 2672 of 1977 was cased out for hearing. The learned Judge by his order of 7th January 1978 therefore permitted the petitioners as well as respondents Nos. 2 3 and 4 tn defend the suit on the condition of their depositing Rs. 2 lacs within eight weeks of the date of the order. It is this order which has been challenged in this revision before me.
(3.)The principles which govern Courts in the matter of grant of leave to defend summary suit under Order 37 are well known and have been finally settled by the Supreme Court in Milkhiram (India) Pvt. Ltd. and others. Chamanlal Bros. AIR 1965 SC 1698 and M/s Mechalec Engineers & Manufacturers v. M/s Basic Equipment Corporation AIR 1977 SC 577. Shortly stated the principle is that if the case raises a triable issue -whether it does so or not it is always a matter of discretion of the trial Judge having experience to form his tentative conclusion about the quality or nature of defence leave should ordinarily be granted unconditionally. But if the defence is frivolous false or sham leave should be refused. And even in cases where triable issues are raised the Judge may impose conditions while granting leave to defend. This principle is reiterated of course in details by Beg J. as he then was speaking for the Court in Mechalec Engineers case (supra) when he enumerated about five principles which the Court should bear in mind for granting leave to defend They are: (i) The plaintiff would not be entitled to leave to sign judgment and the defendant is always entitled to leave to defend if there is good defence; (ii) The defendant is equally entitled to such leave if he raises a triable issue indicating a fair bona file and reasonable defence; (iii) Even if the facts stated in the affidavit do not disclose a clear defence but the facts are such as may lead to inference that in the course of trial he may be able to establish his defence leave may be granted subject to such conditions as the Court may think fit; (iv) The plaintiff is entitled to leave to sign judgment if the defence is illusory or sham or practically moonshine and (v) Even in such cases as stated in (iv) above the Court may grant leave to defend by directing deposit of the amount claimed in the Court or otherwise secured so as to protect the plaintiff. These are oft repeated principles which of course are difficult in application. The question which arises in this revision application is whether in the changed context of the amending provisions of Rules 1 and 3 of Order 37 of the Civil Procedure Code these principles still hold good ? It should be recalled that Order 37 originally envisaged a limited right of filing summary suits in respect of negotiable instruments only and the right was available originally in High Courts of three Presidency towns of Calcutta Madras and Bombay and was thereafter extended by Act 66 of 1959 to District Courts or other Court specially empowered by the State Government in that behalf. The High Court of Bombay had extended application of the provisions contained in Order 37 to the Bombay City Civil Courts. Sub-rules (1) and (2) of Rule 2 of Order 37 permit summary suits upon bills of exchange Hindus or promissory notes. The Bombay High Court has substituted sub-rules (1) and (2) of Rule 2 and has provided that summary suits can be filed not only in respect of dues under the negotiable instruments but also in respect of suits in which the plaintiff seeks to recover debt or a liquidated sum of amount arising under a contract or as enactment which is not in the nature of penalty or in suits in which possession is sought by the landlord of immovable property with or without claim of rent or mesne profits against a tenant whose form of tenancy has been determined or aspired Original rule 3 of Order 37 has been substituted by the Bombay High Court and a provision his bee made as to how writ or summons together with the copy of plaint and exhibits thereto are to be served on the defendant and within what time he has to file his appearance. Sub-rule (3) of Rule 3 further provided that on such an appearance being entered upon the plaintiff can take out a Summons for judgment and the defendant may within ten days from the Service of such Summons by affidavit or otherwise disclose such facts as may be deemed sufficient be entitle him to defend and apply for leave to defend the suit which may be granted conditionally or unconditionally as may appear to be just to the Judge commended. After bifurcation of bilingual State of Bombay in 1960 and on the establishment of the City Civil Courts in Ahmedabad the Ahmedabad City Civil Court Rules 1961 were enacted. Chapter XI of the said Rules deals with summary suits and Rules 142 and 143 provide for the nature of claims in respect of which summary suits can be filed and principles which would entitle defendant the same. The nature of claims in respect of which such summary suits are permissible are claims under Negotiable Instrument Act or in nature of debt or liquidated amount of money arising under a contract or an enactment but not amounting to penalty. The Judge at the hearing of Summons for judgment if satisfied after considering affidavits and documents if any that the defendant has a good defence to the action on the merits or has disclosed such facts as may be deemed sufficient to entitle him to defend grant leave to defend for the whole or any part of the claim as he may deem fit unconditionally or on such terms and conditions as to security or otherwise as may appear to him to be just. The Civil Procedure Code 1900000000 was extensively amended with effect from 1 May 1977 by Act 105 of 1976. Rules 1 2 and 3 of Order 37 have been substituted and relevant part so far as malarial for our purposes provides as under: "ORDER XXXVII
1 (1) This Order shall apply to the following Courts namely: (a) High Courts City Civil Courts and Courts of Small Causes; and (b) other Courts:

(2) Subject to the provisions of sub-rule (1) the Order applies to the following classes of suits namely:- (a) suits upon bills of exchange hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest arising - (i) on a written contract or (ii) on an enactment. where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee where the claim against the principal is in respect of a debt or liquidated demand only.

2 x x x x

3 x x x x

4 x x x x

(5) 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 deemed sufficient to entitle him to defend apply on such summons for leave to defend such suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) x x x x x x x It is the context of these amended provisions that a question is posed before me whether the principles which have been enunciated by the Supreme Court in the aforesaid two decisions will still hold the field in the matter of grant or refusal of leave to defend. It must be admitted at the out set that the discretion which Court enjoyed under the original provisions of Order 37 rules 1 2 and 3 before the Amendment in 1976 is now sought to be delineated by the presents. Two provisos are pointer to that direction though under the main enactment contained in sub-rules extracted above the Court still enjoys the discretion in the matter whether leave should be granted with or without conditions. In order to find out what would be the relevant provisions which govern such discretion one has got to consider what is excepted by the two provisions. The second proviso now makes it obligatory on the Court not to grant leave to defend suit unless the amount admitted by the defendant as due to the plaintiff is deposited by him in the Court. It is the first proviso which really causes some anxiety whether it has got any bearing on the main enactment contained in sub-rule (5). It is patent on the face of the proviso that it is coached in double negative. The said proviso prescribes that leave to defend shall not be refused unless the Court is satisfied about the absence of substantial defence or defence being frivolous or vexatious. It is no doubt true that this proviso appears to be mandatory on the fact of it but reading sub-rule (5) as a whole together with the two provisos it appears that the first proviso tries to circumscribe the discretion of the Court tin the matter of refuse of leave. The first proviso obliges the Court that before refusing to grant leave it shall satisfy that the facts disclosed by the defendant do not indicate that there is substantial defence or the Court is satisfied that the defence is frivolous or vexatious. The satisfaction of the Court before refusing to grant leave about the want of substantial defend complicates the situation since the absence of substantial defence may induce the Court in a given case to refuse grant of leave. Notwithstanding this complication on the well known principle of interpretation of statute one has to construe the different provisions of an enactment in a harmonious manner son that no part. of it is rendered redundant or otiose. Three situations may conceivably arise in such suits. The defence may be of a substantial nature it may as well be frivolous or vexatious and thirdly there may be a defence which is triable and given an opportunity the defendant may b able to make his case good. Reading the main enactment together with the first proviso I am of the opinion that so far as the first two situations are concerned the job of the Court is not difficult. In a case where there is a substantial or a good defence the Court must grant as a matter of course leave to defend the suit. In a case where the defence is patently frivolous or vexatious god the Court is satisfied about it it would refuse to grant leave. The role of the Court becomes difficult only in those cases where there is a disclosure of probable defence which may be made good if an opportunity is given to the defendant to substantiate his case. It is in this gray area that the discretion of the Court is to be regulated by known and recognised principles. I am of the opinion that having regard to the principles which were governing the discretion of the Court till the relevant provisions of Order 37 of the Civil Procedure case were amended in 1976 should continue to govern the discretion of the Court in this gray area where there is a probable defence which may be made good provided an opportunity is given. It is here when the Court has to apply its experience and common sense and decide for itself whether leave should be granted conditionally or unconditionally. In this connection it would be advantageous to refer to Rule 3 as amended by the High Court of Bombay in Order 37. Sub-rule (3) of the said unamended rule 3 provided that 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 deemed sufficient to entitle him to defend apply on such summons for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to be just. Rule 143 of the Ahmedabad City Civil Courts Rules 1961 provides in clause (c) as to when the Court will grant leave to defend the summary suit. Clause (c) of Rule 143 provides as under:

"(c) At the hearing of the statement for judgment the Judge may after considering the affidavits and declaration (if any) if he is satisfied that the defendant has a good defence to the action on the merits or has disclosed such facts as may be deemed sufficient to entitle him to defend grant leave to defend for the whole or any part of the claim as he may deem fit unconditionally or on such terms and conditions as to security or otherwise as to the Judge may appear just".
This very phraseology as to the disclosure of such facts as may be deemed sufficient to entitle a defendant to defend has been employed by the Parliament in the main enactment of sub-rule (5) of Rule 3 of Order 37 after its amendment Rule 143(c) of the Ahmedabad City Civil Courts Rules besides adopting the sad criterion of satisfaction also permits Court to grant leave on its satisfaction about the defence being good. What facts would be deemed sufficient in the opinion of the Court to entitle a defendant to deemed a summary suit should not be a were matter of value judgment. Undoubtedly it is a matter within the discretion of the Court to decide whether leave should be granted or not on being satisfied about the sufficiency of defence. None-the-less it is the discretion which should be will regulated and exercised according to the correct legal principles. It is no doubt law that it would not be possible for the Legislature or Parliament to indicate exhaustively as to what facts should be deemed sufficient for entitling a defendant to leave to defend the suit as if it is a straight jacket formula since the facts may vary from case to case. But in order to appreciate the said provision in proper perspective the objects and reasons for the said clause given at the time of moving of the Bill in the Parliament have been looked into. By clause 87 Order 37 Rules 1 2 and 3 have been amended. The objects and reasons for the said clause 87 inter alia stated ..
"He must apply for leave to defend within ten days from the date of the service of the summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the court may deem sufficient for granting leave to the defendant to appear and defend the suit. If no leave to defend is granted the plaintiff is entitled to a decree the object underlying the summary procedure is to prevent unreasonable obstruction by a defendant will has no defence".
The aforesaid extracted statements from the objects and reasons give perspective of the amended procession of Order 37 in general and rule 5 in particular. The main enactment contained in sub rule (5) will be attracted in those cases where the facts disclosed are deemed to be sufficient in the opinion of the Court as to constitute some defence. In other words it should be a question of triable issue. It is no doubt true that the object of rational underlying Order 37 is to try those suits specified more particulary in rule 1 in a summary manner so that the trial of commercial causes may not be delayed or obstructed be such dishonest defendant triage to raise frivolous or vexatious defence or by offering virtually an apology of defence. The first proviso therefore circumscribes the discretion where the Court is satisfied that there is no defence whatsoever or the defence is false or frivolous. Where the Court finds that there is a substantial defence it is obligatory on the court to grant leave unconditionally. When the court finds that there is a defence in the sense of a triable issue having been raised the Court shall exercise its discretion to grant leave conditionally or unconditionally. The concept of a triable issue is well known recognized and clearly enunciated. The triable issue may be about want of consideration execution want of legality or formality of the execution of document or want of compliance of mandatory obligation of the statute etc. This list is not exhaustive and it will depend on the facts and circumstances of each case together the facts disclosed by affidavits or otherwise raise a triable issue and the Court has to in every given case before it examine the facts so disclosed by the defendant with its large experience and robust common sense whether a triable issue has been raised or not. It should however before in mind at that stage when the Court is considering whether there is a triable issue or not that the Legislature has by the first proviso circumscribed the power of the Court to refuse to grant leave only on being satisfied that there is a no substantial defence or it is frivolous or vexatious. In other words till that satisfactions reached the Court is not entitled to refuse to grant leave. The Court has also to bear in mind the second proviso which prescribes that no leave shall be granted without the defendant depositing the admitted claim of the plaintiff. It is in this background therefore F that I have to find out whether the discretion exercised by the trial Court was erroneous on matter of principles.