A J Shastri, J.-Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 16.07.2019 passed by the learned Judge, City Civil Court No.31, Ahmedabad below Leave to Defend (Exh.17) in Summary Suit No.631 of 2017 at ANNEXURE-F hereto.

(B) Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 16.07.2019 passed by the learned Judge, City Civil Court No.31, Ahmedabad below Leave to Defend (Exh.17) in Summary Suit No.631 of 2017 at ANNEXURE-F hereto.

(C) ...............

(D) ..............."

2. The case of the petitioners that the petitioner No.1-original defendant No.1 is a Private Limited Company registered under the provisions of the Companies Act, 1956. The petitioner No.2-original defendant No.2 is an ex-director of the petitioner No.1 company and the respondent is individual plaintiff who instituted a suit for recovery of the unliquidated amount against the petitioners on the premise of having advanced personal loan of Rs.3,50,00,000/- to the petitioner No.1 at the behest of the petitioner No.2. It is stated in the petition that the respondent on the premise of having advanced a personal loan of Rs.3,50,00,000/-, as stated above, to the petitioner No.1 company at the behest of the petitioner No.2, ultimately filed Summary Suit no.631 of 2017 in the City Civil Court at Ahmedabad against the petitioners under Order-37 of the Code of Civil Procedure for recovery of an amount of Rs.5,10,18,836/-, including interest thereon mainly on the ground that the petitioners have failed and neglected to repay the said amount of loan (subject matter of the four cheques issued in that regard), for which criminal complaint under the provisions of the Negotiable Instruments Act, 1881 has also been filed in the Court of learned Metropolitan Magistrate, 33rd Court at Mumbai. The plaint of the summary suit is attached with certain documents and along with that, the respondent also filed Summons for Judgment at Exh.12 and simultaneously upon service of summons, the petitioners have submitted leave to defend at Exh.17 by way of affidavit. According to the petitioners, the petitioner No.2 has raised defense that the petitioner No.1 company, being a Private Limited Company, cannot accept personal loan from any one nor the said acceptance of alleged loan is supported by any resolution of the company. Secondly, it was also denied that at the behest of the petitioner No.2, the respondent had advanced a personal loan to the petitioner No.1. It has also been asserted in the leave to defend that the respondent- original plaintiff could not have lent any money without holding requisite money lending license or any permission from the Reserve Bank of India and further for the loan to the petitioner No.1, the Directors cannot be held responsible and further except the petitioner No.2, no other directors of the petitioner No.1 company were joined in the proceedings and further it has been asserted that the alleged loan is not supported by any loan document and as such, in absence of any agreement or written contract, the suit itself is not maintainable. It has also been stated that the Court has no territorial jurisdiction as the transaction had taken place not within the jurisdiction of Ahmedabad as the petitioner resided at Bombay, carries on business at Mumbai and the cheques were issued at Mumbai, drawn at Mumbai and therefore, no cause of action has arisen within the territorial limits of Ahmedabad and therefore, on account of these multifarious contentions, the leave to demand was submitted by the petitioners at Exh.17 affidavit. It is the case of the petitioners that learned Trial Judge rejected the said summons for judgment at Exh.12 and allowed the leave to defend at Exh.17 and granted unconditional leave to the petitioners to defend the suit by common order dated 16.11.2018 and while considering such unconditional leave to defend, all the aspects, including the point of jurisdiction, was considered and without having any valid license, the respondent lent the money to the company. It appears that against the said order dated 16.11.2018, the respondent preferred Special Civil Application No.19328 of 2018, in which learned Trial Judge was directed to reconsider the case afresh since some of the contentions have not been dealt with and therefore, the petition came to be disposed of vide order dated 10.6.2019.

3. It is the further case of the petitioners that learned City Civil Judge, Court No.31 reheard the parties and passed a further common order dated 16.7.2019 rejecting the summons for judgment at Exh.12 and allowed the leave to defend at Exh.17 on condition that the petitioners shall deposit an amount of Rs.2,28,95,000/- to defend the suit within a period of one month from the date of the order. It is this order of granting conditional leave, the present petitioners have invoked the extraordinary jurisdiction of this Court for challenging the same.

4. The petition in which the notice was issued on 14.8.2019, has come up for further hearing, wherein learned senior advocate Mr. Anshin H. Desai has appeared with learned advocate Mr. Nisarg P. Raval for the petitioners and learned senior advocate Mr. Jal S. Unwala has appeared with learned advocate Ms. Tejal Vashi for the respondent- original plaintiff and learned advocates have canvassed their submissions for consideration of the Court.

5. Learned senior advocate Mr. Anshin Desai appearing for the petitioners- original defendants has vehemently submitted that the contentions which have been raised by the petitioners have not been dealt with at length and by way of laconic order, the conditional leave to defend is granted which, in no circumstance, is sustainable in the eye of law. It has further been submitted that the suit under the provisions of Order 37 of the Civil Procedure Code itself is not maintainable as there is no written contract and even if maintainable, then also there are several tribal issues involved which would justify the Court to grant unconditional leave to defend and therefore serious error is committed in exercising the jurisdiction. It has further been submitted that irrespective of the principal amount, even there is no written contract or agreement for charging interest and therefore also, the case would be outside the purview of Order 37 of the Civil Procedure Code. For the purpose of strengthening the submissions learned senior advocate Mr. Desai has relied upon few decisions, in the case of Chlochem Limited Vs. Lifeline Industries Ltd.,2014 AIJEL(HC) 231567 and the judgment dated 17.4.2017 delivered in Special Civil Application No.6350 of 2017. Mr. Desai has further submitted that even by virtue of Section 20 of the Civil Procedure Code, the place of submitting a plaint would not be Ahmedabad since the transaction at length has taken place in Mumbai and as such, since every transaction and part thereof has taken place at Mumbai, this Court has no jurisdiction. As a result of this, this is the tribal issue, unconditional leave to defend could have been granted. For that purpose, Mr. Desai has relied upon the decision in the case of Arinits Sales Pvt. Ltd. Vs. Rockwell Plastic Pvt. Ltd. & Ors.,2008 2 ILR(Del) 66 and by referring to para 7 and 18, a contention is raised that by virtue of this decision also, the suit itself is not maintainable here in the Court at Ahmedabad. It has further been submitted by Mr. Desai that even the summons for judgment which has been moved by the respondent, if to be perused thoroughly, the figure of the amount of outstanding, which has been stated, is also not tallied and therefore, the claim itself is self-contradictory in nature and that is the ground on which alone, unconditional leave to defend could have been granted. Mr. Desai has further relied upon a decision in the case of Chandradhar Goswami and others Vs. Gauhati Bank Ltd., (1967) AIR SC 1058 and by referring to para 6, the said contention has been substantiated by learned senior advocate Mr. Desai. It has further been submitted that it is also repeatedly pronounced by the Court in catena of decisions that whenever there is a tribal issue involved, unconditional leave to defend is granted. Resultantly, serious error of jurisdiction is committed. Mr. Desai has further submitted that such a huge amount which has been paid by the petitioners is lent to the petitioners without obtaining any permission from the Reserve Bank of India or without obtaining any license under the provisions of the Money Lending Act and therefore also the dues which is stated is unenforceable. For that purpose, Mr. Desai has relied upon decision on the case of Ramanlal Punjalal Shah Vs. Pari Shulabhai Haribhai, (1995) 1 GLH 281 ( para 10) and in the case of G. Pankajakshi Amma and others Vs. Mathai Mathew (Dead) Through LRs and Another, (2004) 12 SCC 83 [LQ/SC/2004/451] . It has further been contended that mere issuance of cheques cannot be construed an admission or acknowledgment of debt and therefore, it is erroneous the part of learned Judge to impose such a harsh condition when such kind of tribal issues are involved. It has further been submitted that for the purpose of relying upon the crystallized liability of the petitioners, heavy burden is to be discharged by the plaintiff independent to the case of the defendant and for that purpose, mere admission in communication about the amount would not be a ground for straightway imposing the condition and by referring to the decision which is in the case of Jagdish Prasad Patel (Dead) through Legal Representatives and Another Vs. Shivnath and others, 2019 6 SCC 82 , [LQ/SC/2019/668] a contention is tried to be pressed for assailing the order. Mr. Desai has further contended that here is a case in which there is a definite reflection that each contention has not been dealt with by learned Trial Judge and therefore there is hardly any justification reflecting in the impugned order and as such, by virtue of the decision which is recently delivered by the Apex Court in 2011, non-dealing with contention is an irregularity for which the matter deserves to be remitted back to the Court for fresh consideration. Mr. Desai has further relied upon certain observations which are made in the decision delivered by the Division Bench of this Court but then has ultimately contended that in such a situation, like this, unconditional leave to defend deserves to be granted. Charging of interest itself is a ground to oust the suit proceedings from the purview of Order 37 and as such, after referring to certain relevant papers from the petition compilation, a contention is raised to grant the relief as prayed for in the petition.

6. Mr. Desai has further contended that here is a case, not only in which there is no written contract or any agreement but the amount of interest is claimed and it further appears that the cheques which are forming the part of the subject matter of the present proceedings are of September 2014, wherein the suit proceedings have been filed in April 2017 and as such, considering the law laid down by the aforesaid decisions, learned Judge has committed a serious error in granting conditional leave to defend and after submitting all these contentions, a request is made to correct the order and lift the condition by granting unconditional leave to defend. No other submissions have been made.

7. To meet with the stand taken by learned senior advocate Mr. Desai, learned senior advocate Mr. Jal Unwala appearing on behalf of original plaintiff-the respondent herein has vehemently opposed the petition and has submitted that all these issues which are raised, including the point of jurisdiction as well as the tenability of the proceedings, etc. will have to be examined and appreciated at the time of adjudication of the suit and as such, by virtue of the statutory provisions, learned Judge has appropriately granted conditional leave to defend. It has further been submitted that by virtue of the provisions contained under Order 37 Rule-5 precisely the second proviso, if to be looked into, apparently, there is no error since the amount which has been ordered to be deposited by way of condition is an admitted amount and for which several documents are clearly suggesting that the said amount is appropriately reflecting in the order by way of condition. Mr. Unwala has further submitted that on the contrary, learned Judge has shown grace to the petitioners by granting leave to defend, simultaneously by imposing a condition. On the contrary before grant of leave to defend or considering the same, by virtue of second proviso, the amount must have been directed to be deposited and as such, there is absolutely no irregularity of any nature in passing the order. Mr. Unwala has further submitted that it is erroneous on the part of the petitioners to contend that there is no written contract. In fact, there are documents to that effect wherein the transaction has taken place. The communication which is reflecting on page 46-A is written by the very petitioners to the respondent which clearly suggests that no independent written contract deserve to be undergone. On the contrary, this communication itself is sufficient to construe a contact which has rightly been appreciated by the Court below. The other documents which are attached to page 47-A and 48-A would clearly indicate that on the contrary, this interest amount is also an undisputed issue and as such the defense which has been raised is sham and not tenable and as such, it was well within the discretion of learned Judge to impose the condition. There is no denial reflecting in any of the documents about rate of interest to the extent of 18%. Therefore, it is not correct on the part of the petitioners to contend that in absence of any written contract of 18% interest, order can be assailed. These documents which have been referred to and relied upon are very much part of the record and the same have been considered at length and learned Judge after due application of mind has exercised the discretion. Mr. Unwala has further contended that it is apparently illusory on the part of the petitioners to contend that there are no reasons assigned. In fact, the reasons are very much assigned. Para-19 onwards is clearly an indication that while considering the leave to defend request of the petitioners, the reasons are very much assigned. Mr. Unwala has further contended that all the judgments which are pressed into service by learned advocate for the petitioners are with respect to the written contract as well as the bills and as such, the facts are quite distinguished. As a result this, apparently no error is committed by the Court below. Learned Judge is expected at this stage of proceedings to ascertain whether any triable issue is involved and if involved, on the basis of the facts and circumstances, which condition deserves to be imposed upon and for that purpose, the decision making process reflecting clear application of mind since apparently the correspondences which are part of the record have also been considered and as such in absence of any perversity or material irregularity, the discretion which has been exercised by the Court below does not call for any interference. For the purpose of strengthening his submissions, Mr. Unwala has submitted a decision in the case of Idbi Trusteeship Services Limited Vs. Hubtown Limited,2016 AIJEL(SC) 59386, and by referring to para-18, has vehemently opposed the petition and rather has requested to dismiss the the same with exemplary cost. Mr. Unwala has also relied upon the decision of the coordinate Bench of this Court delivered by Honble Ms. Justice Harsha Devani, and has submitted that none of the contentions raised by the petitioners deserves any consideration since the background of fact is quite clear that even after reconsideration afresh, learned Trial Judge has examined the issue, granted opportunity at length to both the parties and then exercised the discretion. Hence, in view of the scope of the writ jurisdiction, the very exercise of jurisdiction at length may not be disturbed in the interest of Justice. Mr. Unwala has submitted that the provisions of Order 37 at length, if to be looked minutely, it clearly suggests that there is no error of jurisdiction nor any perversity is reflecting. Hence, no case is made out by the petitioners to call for any interference.

8. After the submissions made by learned senior advocate for the respondent, as a part of rejoinder, learned senior advocate Mr. Desai has submitted that at least, in view of the fact that there are no findings recorded by learned Trial Judge on the issues which were raised, the matter requires remand back to the Trial Court and further it has been submitted that the previous remand made by this Court has not been paid any attention to and the direction contained in the operative part of the previous order is completely lost sight of by learned Trial Judge. Hence, for lack of cogent reasons also, the matter requires fresh consideration. It has further been submitted that admission in the pleadings is to be viewed in the context of Order-8 of the Code of Civil Procedure. Simply because something is reflecting in the communication would not be construed as admission or acknowledgment of the debt. As a result of this, unconditional leave to defend deserves to be granted. Mr. Desai has further submitted the plaint as well as the summons for judgment is self-contradictory, raises clearly the triable issues in an application submitted by the petitioners. Hence, the Court ought to have granted unconditional leave to defend.

9. As against this, learned senior advocate Mr. Unwala has further submitted that on the issue of jurisdiction, at an appropriate stage, in view of the guidelines, appropriate decision will be taken by learned Trial Judge, but that would not permit the petitioners to run away from the condition which has been imposed upon. Hence, the petition be dismissed with costs.

10. Having heard learned advocates appearing for the respective sides and having gone through the controversy generated between the parties, before dealing with the main issue, relevant provisions contained under Order-37 of the Code of Civil Procedure, the Court would like to refer to. Order 37 prescribes Summary Procedure to deal with the claims. The essence of the summary suit proceedings is to treat the said suit not an ordinarily suit and the object underlying in such summary procedure is to prevent the unreasonable obstruction by a defendant who has no valid defense and to see that the commercial transaction essentially can be regulated. With this aim, Order-37 of the Civil Procedure Code has prescribed a mechanism to deal with such kind of summary suits. In the present background of facts on hand, if straightway, relevant observation, if to be looked into, is a provision contained under Rule 3 which prescribes a procedure for appearance of the defendant. Sub-Rule (1) has prescribed the mode in which the defendant should appear and submit in the summary suit proceedings. By such of sub-rule (1) of Rule 3, the defendant upon receipt of the summons/ notice shall enter appearance within a period of 10 days. Sub-rule (4) of Rule 3 prescribes that upon entering an appearance by the defendant, the plaintiff shall serve on the defendant a summons for judgment in form No.4A in Appendix-B and the defendant thereafter simultaneously within a period of 10 days by virtue of sub-rule (5) of Rule 3 is entitled to apply for leave to defend and thereto, the discretion lies with the Court either to grant unconditional leave or upon some terms of leave to defend by virtue of proviso contained under sub-rule (5). The relevant proviso is second proviso which specifically indicates that if an amount claimed by the plaintiff is admitted while granting leave to defend, the said admitted amount is directed to be deposited by the defendant in the Court. Hence, this second proviso is to be construed by the Court appropriately depending upon the facts. Since the relevant proviso is center of the consideration, the same is reproduced hereinafter:-

"Rule 3(5):

The defendant may, at any time within ten days from 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 Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not 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 the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court."

11. Then sub-rule (6) and (7) are further the relevant provisions how to deal with such summons for judgment and simultaneously leave to defend. In the context of the aforesaid provisions, if background of the facts on hand, if to be looked into, it suggests that some communications which are part of the record are to be viewed. In this context, page 46-A of the petition compilation, if to be looked into, it is a communication dated 29.9.2014 written to the original plaintiff, which clearly suggests that the temporary loan amount is an admitted position, rate of interest to the extent of 18% is also appearing to be not in dispute and on the contrary, before 31.12.2014, an assurance appears to have been reflecting to transfer the amount through RTGS. This communication dated 29.9.2014 is reproduced hereinafter:-

"Mr. Vineet S. Jaain,

A. 102, Sepal Garnet,

Near Reliance Petrol Pump,

100ft Road Satellite,

Ahmedabad-380 015

Gujarat

E-mail:Vineet.Jafn@adani.com

Dear Sir,

As discussed and informed your goodself that due to delay in receipt of payment from our various 1 clients, therefore, temporary loan amount of Rs:3,50,00,000/- (cheque no.003520 for Rs.1.Crore, cheque no.003521 for Rs.1 Crore, cheque No.003522 for Rs.1 Crore & cheque no.003523 for Rs.50 Lacs) payable on 30.09.14 will have to be postponed for a further period of 3 months i.e. upto 31.12.2014 but as far as interest payment upto 30.09.14 @ 18% per annum less TDS is concerned the same will be transferred between 15.10.14 to 30.10.14 by RTGS positively and similarly the above principal amount of Rs.3,50,00,000/- only will be also transferred by RTGS by or before 31.12.2014.

We therefore request your goodself to kindly do not present the above cheques on 30.09.14 & return the same as we have confirmed to you that above payment of principal amount E interest) amount will be transferred to you by RTGS only on the respected dates.

We hope you will understand and will do needful accordingly.

Thanking you......"

12. Yet another communication which is also confirming the outstanding dues, simultaneously reflecting the assurance, is also a specific communication written by the petitioners dated 13.12.2014, which clearly reflects a confirmation and no dispute about the rate of interest in any form. With a view to avoid uncertain burden, the same is not reproduced hereinafter but the Court has taken into consideration the said communication and even by the Trial Court as well. Yet another communication which is reflecting on page 48-A is also an important document in which an indication given about the payment, which also reflects the rate of interest, which is appearing to be not in dispute.

13. Additionally, the notice which has been issued also makes it clear about the crystallized liability with rate of interest and as such, apparently it is appearing from the record that this agreement between the parties not only about the principal amount but also the rate of interest is also a clear clarification between them and as such, there need not be any separate written agreement for such to be instituted by the present petitioners.

14. A further record also makes it clear that para 17 reflects a clear assertion with regard to interest as well as with regard to the amount which is payable. Such para 17, since relevant, is reproduced hereinafter:-

17. I say that the present suit is filed as Summary Suit as it is based on the cheques given by the defendants for their due payment to me and as the same was dishonored, the suit is based on the said Negotiable Instrument and the cheques were by and for the legal liquidated dues of the plaintiff. It is submitted that in the letters written by the defendants to the plaintiff, the defendants have admitted the payment of interest at the rate of 18% p.a. from the due date. Therefore, it is very clear that there was clear agreement between the parties that payment of 18% interest from 31.12.2013 and the said amount comes to Rs.2,24,93.836=00 as on 31.03.2017. Defendant No.2 under capacity of Director of Defendant No.1 had discharged a sum amounting to Rs.1,49,81,000=00 only (inadvertently and due to oversight shown as Rs.64,75,000/- in the suit). Thereafter on 31.05.2017 Defendant No.1 had also further made a payment of Rs.4,00,000/- towards interest. Thus, a total sum of Rs.1,53,81,000/- is paid towards interest. ........"

15. Simultaneously, the further record if to be considered, the narration of the leave to defend affidavit also makes it clear that in no uncertain terms on oath dated 14.3.2018, an assertion is made that according to the present petitioners, only Rs.2,28,95,000/- remains due and as such, irrespective of the main claim of the summary suit, the aforesaid amount is admitted clearly on oath while submitting the leave to defend. Said paragraph 19 from the leave to defend affidavit is reproduced hereinafter:-

19. I submit that Defendant No.1 Company had made payment on various dates and Defendant NO.1 Company had open ledger account in their books of accounts regularly maintained and written as per the provision of the law and regularly maintained the books of accounts and as per the ledger account Statement of Plaintiff for the period of 01.03.2014 to till this date. Only amount of Rs.2,28,95,000/- remains due. The pl is very well aware of this very fact, in spite of that to capture more money by pressurizing and by illegal way demanded very high amount by producing accounts prepared with malafide intention. So plaintiff cannot be believed for the same. First of all Plaintiff has to prove that he got a legitimate dues against the defendants and he was entitle to file the present Summary Suit against the defendants. When at the foot of account, it is not shows true and correct figure or amount and when defendants had malafide dispute with respect to the account, I say that when there is a dispute regarding account is there and same cannot be decided without going in evidence, at this juncture of hearing of Summons for Judgment defendants be permitted to contest the suit unconditionally."

16. The aforesaid background of fact and the material clearly suggest that out of the claim which are posted before the court in summary proceedings, according to the petitioners themselves, only amount which has been payable is an amount of Rs.2,28,95,000/-. Now, if this to be viewed from the operative part of the order while granting leave to defend, this very admitted amount is made part of the condition which is completely in consonance with the provisions contained under order 37 Rule 5 of the Code of Civil Procedure and as such in no case, it can be considered that the order suffers from any material irregularity of any nature nor any perversity is also reflecting from any part of the order.

17. Additionally, now in the context of the aforesaid situation, if the reasons are to be looked into, learned Judge appears to have taken note of such kind of the documents which are referred to, being Mark 4/3 and 4/4, and further has also considered paragraph 19 of Exhibit 17. As such, there appears to be no perversity from the record as well while coming to the conclusion to impose an appropriate condition.

18. If the earlier part of the order to be looked into, the Court while coming to the conclusion has perused all these relevant documents and has also considered various decisions which are referred to and found to be appropriate. That being the position, in the considered opinion of this Court, the order suffers from no irregularity or illegality. Hence, no case is made out by the petitioners.

19. Now, in the context of the aforesaid situation, a proposition of law which has been tried to be canvassed by citing various decisions, the Court would like to first of all opine that there is no lack of application of mind on the part of learned Trial Judge and there is no inadequacy of the reasons rather the Court has considered again afresh on the basis of the relevant material and then exercised the discretion vested in law. In such a situation, now the first decision, which is cited to be looked into, is a decision delivered by this Court in the case of Chlochem Limited (supra), in which the petitioner claimed interest in the suit and the statement of account prepared by petitioner and claiming interest for late payment of interest unilaterally appears to have been debited in the account and the same was added to the principal claim and for that, there was no material on record that there is any agreement between the parties regarding claim of interest and in that factual matrix, it was carved out by the Court that the claim for Internet cannot be said to be liquidated demand and hence in view of such controversy erupted in the said case, the Court has opined to grant unconditional leave to defend. A perusal at length and comparing the same with the background of the present case, it clearly transpires that there is a dissimilarity. Here is a case in which in a communication itself, written by the very petitioners, there appears to be no dispute with regard to the amount and with regard to the charge of interest of 18% per annum. Nowhere, in the communication, the interest amount is disputed rather it is confirmed and therefore, ex-facie, in such dissimilarity, to apply the said decision as a straitjacket formula is of no avail to the petitioners.

20. Yet, another decision which has been pressed into service is the decision delivered by the Division Bench of this Court in Special Civil Application No.6350 of 2017, wherein, a close look at the factual details and the submissions contained therein from para 2.03.1, it was a case of the defendants that the defendants have never placed orders as alleged in the plaint and there was no business transaction between the plaintiff and the defendants. Whereas, here the said fact is not in dispute in lending of money. On the contrary, the same is confirmed in the communication, not disputed and even rate of interest is also very much confirmed in a communication written by the petitioners themselves. A further look at the said facts reveals that the claim of 15% interest rate was not a part of any agreement. Whereas here, irrespective of the separate written contact, even the communications written by the petitioners are making it clear that the rate of interest 18% is rather an admitted fact by the petitioners. Now, if this circumstance to be looked into, the ratio laid down by the Division Bench has no direct application since the claim of interest here in this case is not to be adjudicated upon. On the contrary, what has been claimed is based upon the admitted circumstance reflecting from the written communication itself. Had there been a case in which the rate of interest is to be adjudicated upon, the circumstance might have been different. But, here, the communication dated 29.9.2014 itself is making it clear that this rate is agreed upon for which no separate agreement needs to be executed. A clear assertion is reflecting from the communication dated 29.9.2014 that, "so fas as interest payment upto 30.9 .2014 at the rate of 18% per annum less TDS is concerned, the same will be transferred between 15.10.2014 to 30.10.2014 by RTGS positively" and similarly the above principal amount of Rs.3,50,00,000/- only will be also transferred by RTGS by or before 30.12.2014. A clear assertion from the communication is sufficient enough to indicate that there is no dispute about the rate of interest which is to be adjudicated upon by the Court. Additionally, para 19 of the leave to defend affidavit is also sufficient enough to suggest that an amount of Rs.2,28,95,000/- is a remaining amount which, according to the petitioners, is due and payable. Now, when that be so, from the record, there is hardly any case which can be considered at this stage to grant unconditional leave to defend to the petitioners. Every issues with regard to the jurisdiction, with regard to the amount payable with interest, etc., will be adjudicated upon for which reasonable chance is given to the petitioners by granting leave to defend. So, at this stage of proceedings, apparent circumstance since having been considered by the Court below, the ratio laid down in different set of circumstance cannot be applied mechanically or as a straitjacket formula. Additionally, it appears from the record that learned Judge did consider the relevant decisions which are referred to by the parties to the proceedings in respect of an issue about maintainability of the suit under Order 37 and as such on the basis of the same material, even if another view is possible, it is not for this Court to substitute an exercise of extraordinary jurisdiction. On the contrary, the point of jurisdiction which has been attempted to be raised can be considered by the Trial Court at an appropriate stage and for that very purpose, the leave to defend is granted and as such at an appropriate stage, it is always open for the petitioners to agitate this issue. By virtue of Sections 20 and 21 of the Civil Procedure Code, the Court has been given a discretion either to decide the issue of jurisdiction as preliminary issue or to decide along with the other issues and the same will have to be examined on the basis of the pleadings to be submitted by the parties to the proceedings and therefore, such point is always possible to be agitated by the petitioners at an appropriate stage, moment the leave to defend comes into operation. At bare reading of the provisions contained under sub-rule (5) of Rule 3 has clearly suggested 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 not be granted unless the amount so deposited to be due is deposited by the defendant in the Court and as such, this contention which has been tried to be canvassed at this stage without deposit has rightly not been appreciated by the Court below and as such this point of jurisdiction will be an issue of debate between the parties at an appropriate stage in the suit. The judgment which has been relied upon by the learned counsel in the case of Arinits Sales Pvt. Ltd. (supra), is a decision in which there was an application under Order 7 Rule 10 submitted by the party and simultaneously leave to defend was also moved. Now, in that eventuality, the Delhi High Court has dealt with an issue. Whereas in the instant case, only the leave to defend application is being considered by the Court and therefore, it cannot be presumed by the petitioners at this stage that such point will not be considered by the Court. On the contrary, there are stages available during the course of the proceedings to the petitioners to agitate such kind of issues even as a preliminary issue to be requested to be framed and therefore first of all, the effect of sub-rule (5) of Rule 3 of Order 37 will be given effect to. Hence, the Court is not expected to prejudge such issues which are to be agitated at an appropriate stage. It may be that after such point may be found in favour of the petitioners, but at this stage, to prejudge the issue is not a call for consideration. Yet, the petitioners are expected to abide by the terms of leave to defend and then to step into the proceedings. As a result of this, the Court is not in a position to disturb the order which has been passed by the Court below. So far as the other issues with regard to applicability of the Money Lenders Act, etc., the same also will have to be dealt with at an appropriate stage. Hence, the Court would not like to opine anything which may likely to prejudice the stand of the either side in the main suit proceedings. As a result of this, the judgments which are referred to and relied upon by the petitioners are of no avail.

21. As against this, learned senior advocate appearing on behalf of the contesting plaintiff, has submitted that the decision which has been delivered by the Apex Court in the case of Idbi Trusteeship Services Limited (supra) is considered by the Trial Court in its true perspective and has in terms observed the spirit of such order as contained in para 18. Para 18 of the said decision has superseded every principle and then analyzed the amendment of Order 37 Rule 3 and has observed the principle which is governing the grant or refusal of leave to defend either conditional or unconditional. Since the said observations contained in para 18 are relevant to the present case, the same are reproduced hereinafter:-

18. Accordingly, the principles stated in paragraph 8 of Mechelecs case will now stand superseded, given the amendment of O.XXXVII R.3, and the binding decision of four judges in Milkhirams case, as follows:

a. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;

b. if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend;

c. even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendants good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security;

d. if the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.

e. if the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith;

f. if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.

22. From the aforesaid chronology of factual details as well as the law laid down by the decisions as referred to above, it appears that this is not the case where there is any need to exercise the extraordinary jurisdiction. The Court below appears to have reconsidered the case and then exercised the discretion which apparently reflects no perversity or any material irregularity and as such, in view of the peripheral limits of exercising the extraordinary jurisdiction, the Court is of the opinion that no case is made out by the petitioners.

23. To arrive at such conclusion, the Court has an assistance of some of the decisions of the Apex Court in respect of the exercise of extraordinary jurisdiction and hence, the same have also been considered while coming to the ultimate conclusion. The first decision is in the case of Mohd. Yunus v. Mohd. Mustaqim and others, (1984) AIR SC 38. The relevant observations contained in para 7 are reproduced hereinafter:-

7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.

24. Yet, another decision which has been considered is a decision in the case of Sameer Suresh Gupta TR PA holder Vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 , [LQ/SC/2013/257] in which the principles have been propounded as to exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. Para 6 and 7 are the yardsticks prescribed for such exercise. Hence, the said relevant observations are reproduced hereinafter:-

"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Courts jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others, (2003) 6 SCC 675 [LQ/SC/2003/758] . After considering various facets of the issue,the two Judge Bench culled out the following principles:

"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (I) without jurisdiction- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care,caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 [LQ/SC/2010/718 ;] ">(2010) 8 SCC 329 [LQ/SC/2010/718 ;] [LQ/SC/2010/718 ;] ">(2010) 8 SCC 329 [LQ/SC/2010/718 ;] ">(2010) 8 SCC 329 [LQ/SC/2010/718 ;] [LQ/SC/2010/718 ;] [LQ/SC/2010/718 ;] , and it was held:

"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Courts power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Courts power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

25. Here is a case in which the peculiar background of fact is that the cheques have been issued and the same have been returned without any encashment and therefore this is an additional circumstance about the conduct of the petitioners and even after agreement of payable amount, the cheques have not been allowed to be encashed. Such conduct also ousts the petitioners from equitable principle which is very relevant to exercise the extraordinary jurisdiction. On the contrary, the original plaintiff is dragged to a Court of law under the provisions of the Negotiable Instruments Act. Irrespective of this, it is also a principle laid down that issuance of cheque itself is an acknowledgment of debt, unless it is the case that no cheques have been issued at all. This is not the case of the petitioners here on hand. As a result of this, this is a circumstance which cannot be ignored by the Court, as rightly been agitated by learned counsel appearing for the respondent..

26. From the aforesaid detailed narration, it appears to this court that no error is committed by the Court below in imposing the condition while granting leave to defend to the petitioners. As a result of this, the petition being devoid of merit, stands dismissed with no order as to costs. Notice is discharged. Interim relief, if any, stands vacated forthwith.

27. However, while parting with the present order, the time which has been granted of one month to deposit the amount as ordered by the Court below is extended for a further period of ONE MONTH from today.