1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9853 OF 2010 Mrs. Ushadevi w/o Bhikchand Saraswat since deceased, through L.Rs. Sushilchandra s/o Bhikchand Saraswat and others ... PETITIONERS VERSUS M/s Rajmal Lakhichand and others ... RESPONDENTS ..... Shri A.M.Gholap, Advocate for the petitioners ..... W I T H WRIT PETITION NO.9854 OF 2010 Bhikchand s/o Vithaldas Saraswat since deceased, through L.Rs. Sushilchandra s/o Bhikchand Saraswat and others ... PETITIONERS VERSUS M/s Rajmal Lakhichand and others ... RESPONDENTS ..... Shri A.M.Gholap, Advocate for the petitioners ..... W I T H WRIT PETITION NO.9855 OF 2010 Sunoy s/o Bhikchand Saraswat ... PETITIONER VERSUS M/s Rajmal Lakhichand and others ... RESPONDENTS ..... Shri A.M.Gholap, Advocate for the petitioner 2 ..... W I T H WRIT PETITION NO.9856 OF 2010 Bhikchand s/o Vithaldas Sarswat since deceased, through L.Rs. Sushilchandra s/o Bhikchand Saraswat and others ... PETITIONERS VERSUS M/s Rajmal Lakhichand and others ... RESPONDENTS ..... Shri A.M.Gholap, Advocate for the petitioners ..... CORAM : R.M. BORDE, J. DATE : 18th October, 2010 PER COURT : 1. An application was tendered by the defendants in a summary suit for grant of leave to defend as contemplated by Rule 3 of Order 37 of the Civil Procedure and the Court, after considering all the relevant circumstances, has granted leave to defend in favour of the defendants and has further directed the defendants to file defence within a period of 15 days from the date of the order i.e. 23.8.2010. The said interlocutory order passed by the Civil Judge, Junior Division, Jalgaon in pending summary suits is subjected to challenge in all these four writ petitions. The suit is presented by the petitioners herein (original plaintiffs) is based on the accounts and respective petitioners are claiming recovery of dues from the defendants. The defendants 3 contend that there is legal and proper defence available to them to resist the suit. Considering the contentions raised by the defendants in the application, the trial court has permitted the defendants to file the defence. The trial Court has further placed reliance on the judgment in the matter of M/s Mechalec Engineering Vs. M/s Basic Equipment Corporation, reported in AIR 1971 SC 577, has imposed the condition in respect of presentation of defence within 15 days. I have gone through the order passed by the trial Court and I am of the view that, in the facts and circumstances of the case, the view adopted by the trial Judge appears to be reasonable and proper. 2. The learned counsel for the petitioner has contended that the trial Court ought to have imposed the condition in respect of deposit of amount while permitting the defendants to present their defence. My attention is invited to Rule 3 of Order 37 of the Civil Procedure Code and more particularly proviso to sub-rule 5 of Rule 3. It is contended that the Court ought to have directed the defendants to deposit part of the claim amount in the Court as a condition precedent for grant of leave. Proviso to sub-Rule (5) of Rule 3 provides that, the 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 is frivolous or vexatious. Second proviso also directs that where a part of the amount claimed by the plaintiff is admitted by the 4 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. In the instant matter, the defendant is not admitting any part of the claim raised by the plaintiffs in the plaint. As such, the second proviso to sub-rule (5) of Rule 3 of Order 37 is not attracted. The Court, on examination of the material placed on record, found that the defence raised by the defendants cannot be said to be frivolous or vexatious. Relying upon the decision cited supra, the Court has permitted the defendants to put up the defence subject to condition. The order passed by the trial Court cannot be said to be unreasonable or against the provisions of law requiring to cause interference in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. Considering the fact that the suit is presented in the year 2002, the trial court shall make an endeavour to dispose of the suit as expeditiously as possible, preferably within six months from today. With these directions, all these petitions stand dismissed. R.M. BORDE JUDGE fmp/wp9856.10