* THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.1975 OF 2011 %Date: 16.11.2011 # M/s. Hemanth Industries, Rep. by G. Veera Prakash Reddy … Petitioner And $ M/s. Sri Datta Products, rep. by its Partner Ramaraju Madhusudan Rao … Respondent ! Counsel for the petitioner: Sri Dama Seshadri Naidu ^ Counsel for the respondent: Sri S. Siva Shankar <GIST: >HEAD NOTE: ?CASES REFERRED: THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.1975 OF 2011 DATED: 16.11.2011 Between : M/s. Hemanth Industries, Rep. by G. Veera Prakash Reddy … Petitioner And 1. M/s. Sri Datta Products, rep. by its Partner Ramaraju Madhusudan Rao … Respondent THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.1975 OF 2011 ORDER : The Revision petitioner is the defendant in O.S.No.1233 of 2010 on the file of the Court of the Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar. The respondent herein is the plaintiff. It is a summary suit filed under Order 37 Rules 1 & 2 of C.P.C. for recovery of Rs.7,13,014-32 ps payable under the Cheque dated 1.3.2008. It is alleged that the said cheque given by the defendant was dishonoured by the Bank when presented for payment, and when the plaintiff got issued a legal notice, the defendant gave a reply denying the liability. Hence the suit for recovery of money covered by the cheque together with interest. The defendant/revision petitioner filed I.A.No.1516 of 2010 under Order 37 Rule 3 (5) of C.P.C. seeking leave of the Court to defend the suit. The said application was allowed by the Court below by order dated 20.04.2011 subject to depositing 25% of the suit amount by 14.06.2011. Aggrieved by the said order, the present Civil Revision Petition is filed by the defendant. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent and perused the material available on record. The law is well settled that if the defendant raises a triable issue satisfying the Court that he has a good defence to claim on its merits, the defendant is entitled to unconditional leave to defend. If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence { vide Mechalec Engineers and Manufacturers V. Basic Equipment Corporation (AIR 1977 SC 577) and M/s. Sunil Enterprises V. SBI Commercial and International Bank Limited (1998 (4) Supreme 324) } In the affidavit filed in support of I.A.No.1516 of 2010, the revision petitioner/defendant raised various objections including that the Court has no territorial jurisdiction and that the plaintiff being an unregistered partnership firm cannot maintain the suit in view of the bar imposed under Section 69 of the Indian Partnership Act. Though the plaintiff filed a counter, none of the objections raised by the petitioner were answered. After considering the versions of both the parties, the Court below found that there are triable issues. However, while referring to the plaintiff’s counter expressing no objection for granting leave provided 50% of the suit amount is deposited in the Court as a security to defend the suit, the Court below granted leave to defend subject to condition of depositing 25% of the suit amount. In the light of the settled principles of law noticed above, I find force in the submission of the learned counsel for the petitioner that having recorded a finding that there are triable issues, the Court below ought to have granted unconditional leave. It is true that the power conferred under Rule 5 (3) of Order 37 of C.P.C. is purely discretionary, however once a finding is recorded that there are triable issues, the defendant is entitled to unconditional leave to defend. Merely because the plaintiff consented for grant of leave subject to depositing part of the suit amount, the Court below was not justified in directing the defendant to deposit 25% of the suit amount as a condition to defend the suit. Such exercise of power is impermissible under law and therefore the order under Revision cannot be sustained. Accordingly, the order under Revision is set aside and I.A.No.1516 of 2010 is hereby allowed granting unconditional leave to the defendant/revision petitioner to defend the suit. However the defendant/revision petitioner is hereby directed to file his written statement within four weeks from today. Thereafter, the Court below shall proceed further following due process of law and dispose of the suit as expeditiously as possible preferably within a period of four (4) months from the date of receipt of this Court. Civil Revision Petition is accordingly allowed. No costs. _____________ G. ROHINI, J. Dt. 16.11.2011 Note:- CC by 25.11.2011. (B/O) L.R.Copy gbs