1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6344 OF 2008 Aniket J. Shah .. Petitioner Versus Idea Cellular Limited Through- Constituted Authorised Signatory .. Respondent Shri Surel S. Shah , for the petitioner Mr. Zubin Behramkamdin with Mst. Suti Gupta i/b M/s Bharucha and Partners for respondent CORAM: MRS. MRIDULA BHATKAR, J. DATED: 27th April, 2009 P. C. 1. Heard learned counsel for the parties. 2. The petition is filed against the order of Ld. Joint Civil Judge, Senior Division, Solapur dated 22nd August, 2008 granting conditional leave to defend the suit under order 37 rule 3(5) of the Civil Procedure Code. By this order, the Learned Trial Judge, while allowing leave to defend, has imposed condition that the defendant to furnish security by way of Bank guarantee of Rs.25,00,000/-. Hence the said order is under challenge. 3. The special summary suit was field for the recovery of Rs.25, 45,6663.97. The plaintiff/present respondent is a registered company engaged in providing Cellular voice telephone service and the petitioner is defendant who was given 2 distributorship of SIM cards. The petitioner was supplied various prepaid cards, vouchers, re-charge value cards etc. in July, 2005, against which the petitioner has issued 8 cheques of total amount of Rs.26,39,625/-. These cheques were bounced when they were presented. So, the respondent Company/original plaintiff has send demand notice. The same was replied by the petitioner denying the contents and the money claimed therein and as a counter claim, the demand of money was made from the respondent/ original plaintiff i.e. the amount of commission due from the plaintiff. The respondent so filed summary suit and the learned Trial Judge, while deciding the application for leave to defend, as per order 37 (3) (5) of CPC, granted conditional leave. 4. Learned counsel for the petitioner has submitted that he is only challenging whether the conditional leave can be granted when the Trial Court itself has held that the dispute is triable issue between the parties. The Ld. Cousnel, in support of his submissions relied on following judigments. (1) Sify Ltd. Vs. First Flight Couriers Ltd.( 2008(2) Bom.C.R.16 (2)Defiance Knitting Industries Pvt.ltd. Vs. Jay Arts. (JT 2006 (8) SC 454 The learned Counsel for the petitioner has submitted that the Hon'be Supreme Court has laid down some guidelines which are to be followed by the trial Court while granting leave to defend the suit under order XXXVII Rule 3 of the CPC. He has 3 further submitted that if the defendant raises triable issues then the leave should be unconditional. On fact, Ld. Counsel for the petitioner has submitted that the claim of the Respondent is false and on the contrary the Respondent/ original plaintiff owes amount of Rs.26,87,852/- lakhs towards commission for the sale of the SIM cards, to the petitioners. Learned. 6. The Counsel appearing for the respondent has submitted that the petitioner has issued 8 cheques in favour of the respondents and the details of the chques i.e. date, amount etc. are given in the Suit. The contention of the petitioner about the commission of Rs. 26 lakhs and odd amount is denied by the learned counsel for the Respondent. He has further submitted that the learned Trial Judge has considered the facts and while granting leave to defend has made no error in putting condition to furnish security by way bank guarantee of Rs.25 lakhs. 7. It is true that if the defendant raised triable issue, then the court should grant leave to defend. However, while granting the leave, the Court also to consider the bonafides and fairness of the defence. If Court considers that the transaction between the parties invites some security, then conditional leave may be granted. In the present case 8 cheques were issued within 15 days of Rs.Rs.26,39,625/- by the petitioner in favour of the respondent. Assuming, as per the defence of the petitioner that the respondent i.e. original plaintiff was supposed to pay commission to the petitioner being a distributor of SIM Cards, then 4 in that event the respondent/original plaintiff ought to have issued cheque in favour of the petitioner. Thus, the order passed by the trial Court stands on merit. No interference is required. In the result, the Petition is dismissed with no order as to costs. At this stage, the learned Advocate for the petitioner prays for stay to the operation of this order. On his oral request, the operation of this order is stayed for a period of four weeks from today. ( MRIDULA BHATKAR, J.) jpc/-