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Civil Petition for Special Leave to Appeal No. K‑235 of 1974, decided on 14th March 1975.
(On appeal from the order of the High Court of Sind & Baluchistan dated 20‑9‑1974 in Suit No. 28 of 1974).
‑‑ O. XXXVII, r. 3(2)‑Leave to defend.‑Imposition of conditions for leave to defend‑Not always necessary‑Matter one of discretion of Court and depends upon facts and circumstances of each case‑High Court finding bona fide allegation of a triable issue prima facie made out and granting unconditional leave to defend‑Order held neither unjustified nor unreasonable‑Leave to appeal to Supreme Court refused.
G. H. Malik, Advocate instructed by S. M. Hanif, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing : 14th March 1975.
This is a petition for special leave to appeal from an order of a learned Single Judge of the Sind & Baluchistan High Court granting unconditional leave to defend in a suit under Order XXXVII, C. P. C. for the recovery of Rs. 64,985.72 on the basis of a promissory note:
In this case, the grounds on which leave to defend was sought was that the money was not advanced on the personal security of the drawer of the promissory‑note but on the pledge of goods by delivery to the petitioner‑Bank of the documents of title to the goods, namely, bills of lading and insurance policies in the name of the petitioner‑Bank ; that the goods covered by these documents were far in excess of the advament made and that the goods had actually been cleared by the plaintiff‑Bank the port of destination which was Chittagong. It was the bank that had thereafter failed to account for the goods to the petitioner or to give credit for the price of the goods to the respondent.
On this plea the High Court thought that prima facie, a bona fide allegation of a triable issue had been raised and, therefore, the respondent was entitled to unconditional leave to defend.
The petitioner‑Bank now seeks special leave to appeal and it has been contended on its behalf that in a suit under Order XXXVII on the basis of a promissory‑note the respondent should have been granted leave to defend only on depositing the amount in Court or, at least, furnishing security for the claim.
We are unable to agree. This was eminently a fit case for grant of, leave and no just exception can be taken to the grant of leave to defend by the High Court. Whether conditions should have been imposed or not was in the discretion of the High Court and depended on the facts and no circumstances of the case. The facts of this case if true, raised the plea of the debt being fully satisfied. In this view of the matter the grant of unconditional leave cannot be said to be unjustified or unreasonable.
This petition is, accordingly, dismissed.
Petition dismissed.
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