- (1.) This revision petition under Section 115 of the Code of Civil Procedure has been filed by the petitioner-defendant against the order of the court below directing for payment of security for a sum of Rs. 5,13,642.13.
(2.) The defendant-petitioner had executed a lease-deed in favour of the plaintiff non-petitioner, the Bank of Rajasthan Limited, on the basis of which the Bank had to file a suit for recovery of the amount in question. The trial Court granted leave to defend the suit to the petitioner on the condition of furnishing security for the sum mentioned above under Order 37 Rule 3(5) of the Code of Civil Procedure. The said Rule reads as under :- "3. Procedure for the appearance of defendant - (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." The trial Court relying on the decision reported in M/s. Mechalec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation, 1977 AIR(SC) 577 passed the impugned order. The Supreme Court in that case laid down the principles for passing an order under Order 37 Rule 3.
(3.) Petitioner's argument was that as the defence of the petitioner-defendant was not illusory or shame, the trial court committed an error in recording the defence on the condition of furnishing bank guarantee. The controversy with regard to the defence being malafide and untenable, could not be gone into at this stage. Prima facie, the trial Court found that granting conditional leave to defend was in the interest of justice. The discretion exercised has not been shown to us malafide. That being so, this revision has no substance.;