1 jpc/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGIINAL CIVIL JURISDICTION APPEAL NO. 297 OF 2009 WITH NOTICE OF MOTION 2688 OF 2009 IN SUMMONS FOR JUDGEMENT NO. 304 OF 2008 IN SUMMARY SUIT NO. 2124 OF 2008 Chhaya Cut Piece House and others .. Appellants Versus Mulchand R.Saiya and others .. Respondents Shri P. M. Shah for the appellant Shri Q. M. Ashfaq for the respondents CORAM: V. C. DAGA, & MRS. MRIDULA BHATKAR, JJ. DATED: 17th August, 2009 J U D G E M E N T ( Per Mridula Bhatkar, J. ) 1. Factual Matrix :The appellants have challenged a order of the learned Single Judge dated 6th April, 2009 granting conditional leave to defend, i.e. upon the defendants -Appellants depositing Rs. 14 lakhs representing the principle amount on the promissory notes. 2. The appellants had issued four promissory notes totaling principle amount of Rs.14/- lacs in favour of the respondents. On denial by the appellants to pay the said amount, the respondents 2 have filed the summary suit under Order XXXVII of the Civil Procedure Code, 1908 for recovery of the principle amount of Rs. 14/- lacs and the interest mentioned therein. 3. Submissions :The learned counsel appearing for the appellants contended that the Ld. Single Judge has committed error in imposing condition while granting leave to defend. He has further contended that the promissory notes are forged and tried to point out the variance in the signatures appearing on the promissory notes and has taken the defence of total denial. 4. Consideration : The promissory notes and other documents reveal a loan transaction on interest between the respondent-original plaintiff and the appellants partnership firm. The signatures of the partners of the firm are appearing on the promissory notes. The learned Single Judge has considered all the documents and has prima facie taken a correct view on the point of genuineness of all the promissory notes. 5. On the point of granting leave, whether conditional or unconditional, the guidelines summed up in the case of Sunil Enterprises and another Vs. SBI Comercial & International Bank Ltd., reported in (1998) 5 Supreme Court Cases 354, in para-4, are considered. 3 "(a) If the defendant satisfies the court that he has a good defence to the claim on merit, the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a tribale issue indicating that he has fair and bonafide 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 to 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." (emphasis added) 4 6. Considering the defence taken by the appellants respondent and the triable issue involved, the order passed by the Trial Court granting conditional leave to defend cannot be faulted with. The order passed by the learned Single Judge is legal and just 7. In the result, the appeal is dismissed with no order as to cost. ( MRIDULA BHATKAR, J.) (V. C. DAGA, J.)