KOTHARI, J. - (1.) HEARD the learned counsel.
(2.) THE learned counsel for the petitioner- defendant has submitted that while granting leave to defend by the impugned order dtd. 21. 8. 2007, the learned trial Court has erred in imposing condition of furnishing security for decree passed in summary trial under Order 37 C. P. C. He relied upon the judgment of this Court in the case of Har Narain vs. Nagami Lal reported in 1987 (2) RLR 202 = 1987 RLW 677 wherein relying upon the decision of Hon'ble Supreme Court in the case of M/s. Machalee Engineers and Manufacturers vs. M/s. Basic Equipment Corporation reported in AIR 1977 (SC) 577, the Court held that unless the trial Court comes to the conclusion prima facie that the defence sought to be raised by the defendant under Order 37 Rule 5 CPC is sham or moonshine, the learned trial Court cannot impose condition of furnishing solvent security while granting leave to defend. The learned counsel for the petitioner also relied upon the decision of the Hon'ble Supreme Court in the case of M/s. Sunil Enterprises and another vs. SBI Commercial and International Bank Ltd. reported in 1998 DNJ (SC) 205 = RLW 1998 (3) SC 318, wherein the Hon'ble Supreme Court relying upon the five propositions laid down in aforesaid case of Basic Equipments (supra) held that where the leave to defend in sought on the ground of fraud, collusion and connivance in between the bank employees and the drawee, the condition of security could not be imposed. The five propositions laid down by the Hon'ble Supreme Court in the aforesaid case are following: (a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial, he may be able to establish a defence to the plaintiff's claim, the Court may impose conditions at the time of granting leave to defend- the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured. The learned counsel for the petitioner has thus, submitted that in the present suit filed by the plaintiff on the basis of promissory note, the defendant has denied execution of the promissory note and therefore, while granting leave to defend, the learned trial Court could not impose the aforesaid condition. The learned counsel for the petitioner also relied upon the judgment of this Court in the case of Mahesh Chandra vs. Buda Ram reported in 2002 (2) DNJ (Raj.) 580 wherein this Court held in para 13 of the judgment that where the defendant came up with defence disputing the amount and also executing the pronote with further averment that the amount of loan had already been repaid in addition to many other pleas including deficiency of stamp on the pronote, not having the valid licence of money lending by the revisionist etc. , the learned trial Court was justified in allowing leave to defend unconditionally. The said case arose upon the revision petition filed by the plaintiff challenging the grant of leave to defend to the defendant.
(3.) ORDER 37 Sub-Rule (5) C. P. C. reads as under:      " 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 uncon-ditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not 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 defendants 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 said provision clearly mandates that leave to defend may be granted to him unconditionally or upon such conditions as may appear to the Court 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 and vexatious. In the present case, the plaintiff has filed the suit on the basis of promissory note. The leave to defend was sought by the petitioner-defendant merely with the averment that execution of pronote was denied by him. The suit was filed for a sum of Rs. 60,000/- with interest of Rs. 22,800/- on the basis of said pronote. The defendant in his application Annex. 2 also stated that the stamp on the receipt along with the said pronote was crossed afterwards and therefore, the same was material alteration in the receipt. The learned trial Court by the impugned order dtd. 21. 8. 2007 has held that the validity of the said defence could be examined only during the course of trial. However, on the basis of denial of execution of pronote, the learned trial Court has granted leave to defend of course subject to condition of adequate security for said sum of Rs. 85,000/ -. ;