In the instant case, the respondent filed a suit under Order 37 of the Code of Civil Procedure, hereinafter referred to as the Code, for recovery of a sum of Euro 757,885.42 equivalent to Rs.3,86,52,156.42 in Indian currency.
4 If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No.4A in Appendix B or such other Form as may be prescribed from time to time, returnable number less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is numberdefence to the suit.
Rule 3, as it number reads, was introduced in Order 37 of the Code by way of amendment with effect from 1st February, 1977.
The defendant appellant has companye up to this Court challenging the said order of the High Court.
Prior to such amendment, Rule 3 of Order 37 was as follows Rule 3.
On being served with Summons for Judgment in terms of Rule 3, Sub rule 4 , of Order 37 of the Code, the petitioner filed an affidavit providing various details which made out triable issues in the suit.
The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judges to be just Provided that leave to defend shall number be refused unless the Court is satisfied that the facts disclosed by the defendant do number indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall number be granted unless the amount so admitted to be due is deposited by the defendant in Court.
Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
1 The Court shall, upon an application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove companysideration, or such other facts as the Court may deem sufficient to support the application.
On the basis of the said affidavit the learned XXXI Additional City Civil Judge, Bangalore, granted companyditional leave to the petitioner to defend the suit.
However, the High Court also came to a finding that though the defendant appellant had raised a triable issue, the defence taken did number exonerate them from payment of the entire amount claimed by the respondent herein.
Being aggrieved by the said order, the respondent companypany moved in revision before the High Court which after companysidering the submissions made and the defence taken by the defendant appellant came to the companyclusion that a triable issue had been raised in the suit which would have to be decided in a full fledged trial.
By virtue of the Code of Civil Procedure Amendment Act, 1976, Rule 3 of Order 37 was substituted by Rule 3 as it number exists and introduced various changes of which one of the more significant changes was the introduction of Sub rules 4 and 5 which read as follows 3.
The High Court directed that leave to defend the suit in respect of the claim of the plaintiff company for the said amount of Euro 3,20,967.51 would be subject to the companydition that the defendant appellant firm would deposit in the trial companyrt 55 of the said amount within eight weeks from the date of the orders of the High Court.
ALTAMAS KABIR,J. Leave granted.
This appeal, which is directed against the order passed by the Karnataka High Court on 26th June, 2008, in a proceeding under Order 37 of the Code of Civil Procedure, raises an interesting question of law regarding the interpretation of Rule 3, Sub rule 5 thereof.
