1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.447 OF 2005 IN SUMMONS FOR JUDGMENT NO.639 OF 2003 IN SUMMARY SUIT NO.3563 OF 2002 M/s Lalit Constructions & Ors. .... Appellants (Ori. defendants) Vs. Smt. Sandhya Pramod Patel .... Respondent (Ori. plaintiff) Mr.Divesh Chamboowala, Advocate for appellants. Mr.L.H. Patil i/by Mr. Kirit J. Hakani Advocate for respondent. CORAM : J.N. PATEL & SMT.R.P. SONDURBALDOTA, JJ. DATE : 4th September 2009 PC : 1. Heard learned counsel for the parties. 2. In this appeal, the appellants-original defendants have impugned the order dated 4th April 2005 passed by the learned Single Judge wherein the appellants have been granted conditional leave to defend the suit by directing the appellants to deposit a sum of Rs.5,00,000/- within the period of eight weeks. In the event the appellants deposit the amount, the same shall be invested in any nationalised bank of the choice of the defendants, if such choice is 2 indicated at the time of deposit or else in the Bank of India, Main Branch, Fort. On such deposit being made, the suit shall stand transferred to the list of commercial causes. The defendants to file written statement within a period of two months. 3. The only point which arises for determination is as to whether the conditional leave granted by the learned Single Judge in favour of the appellants-original defendants is arbitrary in nature and deprives the defendants’ right to contest the suit by imposing such condition. 4. The first contention raised by the learned counsel for the appellants-original defendants is that while passing the impugned order, the learned Single Judge has misconstrued the provisions of Sections 91 and 92 of the Indian Evidence Act, in the context of the subject matter of the suit, particularly in reference to the agreement. The learned counsel has placed reliance on the decision rendered by the Supreme Court in the case of Smt. Gangabai vs. Smt.Chhabubai, A.I.R. 1982 SUPREME COURT 20 particularly in reference to paragraph 11 of the judgment reported therein. 3 5. The learned counsel appearing for the respondent, on the other hand, submitted that the observations of the learned Single Judge should not be misconstrued as a ruling on the interpretation of Sections 91 and 92 in reference to the facts of the case and the parties at the time of leading evidence can very well agitate the said issue. 6. In our view, the finding in paragraph 6 of the impugned order, virtually affects the rights of the defendants and it amounts to pre-judging the issue of admissibility of evidence and therefore we make it clear that this aforesaid observation made by the learned Single Judge would not come in their way while leading evidence. It will be open for the parties to agitate the said issue at appropriate stage. 7. In so far as another point, which has been agitated before us, relating to conditional leave to defend the suit by directing the parties to deposit a sum of Rs.5,00,000/- is concerned, it is contended by the learned counsel appearing for the appellants- original defendants, after placing reliance on series of authorities starting from the decision rendered by the Supreme Court in the case of Santosh Kumar vs. Bhai Mool Singh, A.I.R.1958 SUPREME COURT,321 and M/s Mechalec Engineers and Manufacturers vs. 4 M/s Basic Equipment Corporation, AIR 1977, Supreme Court 577 which are consistently followed as guidelines while considering the application for leave to defend a summary suit. The appellants-original defendants have been able to demonstrate before the learned Single Judge that it has a triable issue and as per the principle laid down in the decisions cited above, the defendant who is able to demonstrate that his defence is bonafide, as it raises a triable issue unconditional leave to defend must be given. 8. In our view, the learned Single Judge having considered the pleadings found that there is no dispute over the fact that the agreement has been executed by the parties and that the defence which is put forth by the appellant-original defendant is that it was not to be acted upon. Therefore having admitted the factum of execution of the agreement, it cannot be said that the plaintiff has no case and the defence taken by the appellants-original defendants will have to be tested on the basis of evidence. Therefore, we do not find that the condition imposed by the learned Single Judge while granting leave can be said to be arbitrary in nature. 9. It is contended before us that the defendant would be deprived of a sum of Rs.5,00,000/- and appellants-original 5 defendants may be permitted to defend the suit on modifying the conditions i.e. instead of calling upon the appellants- original defendants to deposit a sum of Rs.5,00,000/-, the appellants can be directed to furnish a Bank Guarantee of a nationalized bank in the like amount. The learned counsel for the appellants state that appellants-original defendants are ready to furnish Bank Guarantee after seeking instruction from his client who is present in the Court. We find that it will be just and proper to modify the conditions as sought as it will sub-serve the ends of justice. 10. Therefore, we dispose of the appeal by substituting “that the appellants are granted conditional leave to defend subject to their furnishing Bank Guarantee of a nationalized bank in a sum of Rs.5,00,000/-, which shall be kept alive till the conclusion of the suit” instead of depositing a sum of Rs.5,00,000/-. The Bank Guarantee shall be furnished within a period of eight weeks from the date of this order i.e. on or before 4th November 2009. The appeal is disposed of in the aforesaid terms with no order as to costs. Along with furnishing the Bank Guarantee, the appellants-original defendants shall also file their written statement within a period of ten weeks i.e. on or before 6th November 2009. Failure to comply with the 6 aforesaid conditions, the appeal will stand dismissed with costs. (Smt.R.P. SondurBaldota, J.) ( J.N. Patel, J.)