Dua ( 1 ) THIS is a defendant s revision directed against the order of Shri Amarjit Chopra, Commercial Subordinate Judge 1st Class, Delhi, dated 21st March, 1966 directing the defendant to deposit the suit amount together with tentative costs of the suit assessed at Rs. 398. 00 on or before 29th March, 1966 failing which the defendant s request to appear and defend the suit was to be deemed to have been declined. ( 2 ) THE suit in the Court below was instituted early in December, 1965 by Shri Bishambar Nath Chopra against Shri Niresh Chandra Mittal for the recovery of a sum of Rs. 1. 359. 50 Paise under Order 37, Code of Civil Procedure. According to the plaint, the defendant had executed a promissory note for Rs. 950. 00 on 15th January, 1963 payable to the plaintiff with interest at 15 per cent per annum and the defendant having not paid the said amount or any part thereof in spite of repeated demands, the plaintiff claimed Rs. 9501. 00 as principal and Rs. 409. 50 Paise as interest up to date at 15 per cent per annum. ( 3 ) THE defendant applied under Order 37, Rule 3, of the Code for leave to appear and defend the suit. The grounds for such leave were pleaded to be that the promissory note was without consideration. According to the facts pleaded in this application, the plaintiff and the defendant were partners in a firm Messrs Sight Sound Electronics which had been carrying on business at F. 3/19 Krishen Nagar, Delhi-31. This firm was dissolved as the plaintiff did not pay the share of partnership. The brother of the plaintiff Shri Ram Nath Chopra was an apprentice in this firm and it was agreed between the plaintiff and the defendant that nobody would start a similar business. The brother of the plaintiff in spite of this promise started a similar business at B-38, Rajinder Nagar, New Delhi. After the dissolution of this firm, the defendant requested the plaintiff to stop his younger brother from carrying on this business add the defendant agreed to pay compensation for the same. The plaintiff agreed to this suggestion and for this purpose, the plaintiff get three pronotes executed which was dope on 1st January, 1963 but the promissory notes were made to bear different dates. The plaintiff agreed to this suggestion and for this purpose, the plaintiff get three pronotes executed which was dope on 1st January, 1963 but the promissory notes were made to bear different dates. One pronote dated 15th January, 1963 was got written in favour of the plaintiff and two pronotes dated 1st January, 1963 and 16th January, 1963 were got written in favour of Chander Kanta, sister of the plaintiff s wife. It was agreed by the plaintiff that he would get the business of his brother discontinued within one month and if he failed to do so, the pronotes would be inefftctive and no action would be taken thereon. The plaintiff gave a letter to this effect to the defendant on the same date, namely, 1st Janary, 1963. The plaintiff having not stopped the business of his younger brother within one month, he committed a breach of the agreement. It was also pleaded that though the plaintiff alleged cash payment, according to the promissory note, no cash payment was made at the time of its execution. This application was duly supported by an affidavit sworn by the defendant. ( 4 ) THE plaintiff filed a reply to this application. In this reply, the plea of absence of consideration was denied and it was averred that the dfendant had executed the promissory note after receipt of the money for which a receipt had also been executed on the same date. The assertions of the partnership between the plaintiff and the defendant was not denied, but it was pleaded that this business had been dissolved only after two months. The plea that the plaintiff s brother was an apprentice in this business was controverted. Similarly, it was denied that there was any agreement between the plaintiff and the defendant that the parties would not start a similar business. As a matter of fact, according to the plaintiff, the defendant is doing the same business wherein as the plaintiff is merely an employee in a private firm. It was denied for want of knowledge that the brother of plaintiff had started a similar business It may be pointed out that in the typed reply, it has been mentioned "the brother of the defendant", perhaps erroneously by oversight. It was also denied that the defendant had requested the plaintiff to ask his brother to stop doing any alleged business. It was also denied that the defendant had requested the plaintiff to ask his brother to stop doing any alleged business. Agreement to pay compensation was, of course denied. It was repeated that the defendant had taken the money and executed the promissory note in question. In regard to the execution of other promissory notes, the plaintiff expressed ignorance. This is followed by the following averment :- "it is, however, denied that the defendant got executed any pronote in favour of any other person". Apparently herein what is intended to be conveyed is that the plaintiff did not get executed any pronote in favour of any other person. The letter dated 1st January, 1963 relied upon by the defendant was also denied by the plaintiff and this letter was expressly described to be a forgery. This reply was also supported by an affidavit sworn by Shri Bishamber Nath Chopra. ( 5 ) THE learned Subordinate Judge has in the order under revision observed that the defendant had taken two contradictory pleas because he had stated that the promissory note was without consideration and also that the promissory notes had been executed by way of compensation payable to the plaintiff s brother for stopping the business run by him. The learnedSubordinate Judge has also observed that the defendant did not deny doing the same business. This is followed by the observation that a stipulation to stop another person from doing any particular business is opposed to public policy. For these reasons, the Court expressed the view that the plea raised by the defendant was "only flimsy and fantastic". Quoting the following observations of the Supreme Court in Milkhiram (India.) Private Ltd. and others v. Chamanlal Brothers , :- ". . . . . . . . . it on consideration of material placed before the court, it comes to the conclusion that the defence is a sham one and is fantastic or highly improbable and an order putting the defendant on terms before granting leave to defend would be justified. Even in cases where a defence is plausible but is improbable, the court would be justified in concluding that the issue is not a triable issue and put the defendant on terms while granting leave to defend". the Court observed that this authority fully applied to the facts of the case before it and the defence raised was highly improbable. Even in cases where a defence is plausible but is improbable, the court would be justified in concluding that the issue is not a triable issue and put the defendant on terms while granting leave to defend". the Court observed that this authority fully applied to the facts of the case before it and the defence raised was highly improbable. On this view, as observed earlier, leave was granted subject to deposit of the suit amount with costs tentatively assessed at Rs. 398. 00 ( 6 ) ON revision before me, the learned counsel for the defendant has relied on a Supreme Court decision in Santosh Kumar v. Bhai Mool Singh which, according to the learned counsel was relied upon by the Supreme Court in the later decision, to which reference has been made by the Court below. Reliance has particularly been placed on the following passage from the judgment of Bose, J. , who spoke for the Court:- "it is always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion. But it is necessary to understand the reason for a special procedure of this kind in order that the discretion should be properly exercised. The object is explained in Kesavan v. South India Bank Ltd. , and is examined in greater detail in Sundaram Chettiar v. Valli Ammal, to which we have just referred. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sence that, if the facts alleged by the defendent are established, there would be a good, or even a plausible, defence on those facts". The counsel has also emphasised that the later Supreme Court decision proceeds on the amendment introduced in Order 37, Rule 3, Code of Civil Procedure by the Bombay High Court. According to the learned counsel, the lower Court has committed a material irregularity by trying to prejudge the issue and express an opinion as if on the merits of the controversy. According to the learned counsel, the lower Court has committed a material irregularity by trying to prejudge the issue and express an opinion as if on the merits of the controversy. If the facts alleged by the defendant were proved, then according to the learned counsel, it would raise a controversy requiring judicial determination by the Court after taking evidence and hearing the parties fully. The passage from the decision in Milkhiram s case, according to the counsel, is. not to be taken out of the context, and indeed even the ratio of the later Supreme Court decision, so argues the counsel, does not run counter to the rule of law laid down in the earlier decision. As a matter of fact, the observations of Bose, J. have actually been reproduced in the later judgment. The counsel has also pointed out that the terms imposed by the Court below are so oppressive that they virtually amount to shutting out the defence and pre-judging the whole case. ( 7 ) ON behalf of the plaintiff, however, it has been eloquently argued that it is impossible for any reasonable person to contemplate the kind of plea raised by the defendant. The counsel has also urged that the letter relied upon by the defendant is a forgery and, therefor e, he is not entitled to any opportunity to defend the case without depositing the entire amount claimed with costs. ( 8 ) THE law, in my opinion has been stated in the two judgments of the Supreme Court in clear terms. The object of enacting Order 37 has been quite distinctly stated by Bose. J. in the earlier Supreme Court decision. The Court has in exercising its discretion to keep in view the desirability of facilitating speedy decisions of suits upon bills of exchange, promissory notes and hundis and also to keep in view the drastic nature of the provisions contained in Rules 2 and 3 of Order 37. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. The presumption of consideration in the case of negotiable instruments on the one hand and the plea of the defendant and the attending circumstances tending to discount such presumption have to be considered and weighed judiciously by the Court. In otherwords, the Court has to exercise judicial discretion, keeping in view the basic dictates of justice when determining the question whether or not to permit the defendant to contest the suit and if so, whether unconditionally or on terms and what terms. The idea of discretion, which is always to be exercised in a disciplined and responsible manner, really represents a compromise between the idea that those who possess power should be trusted with free hand and not tied down to narrow and rigid groves and the competing notion that loose and unfettered discretion is a dangerous weapon to entrust to any one including Courts. In the background of these principles, on the facts of the present case, it appears to me that the facts pleaded in the written statement do seem to raise a triable issue and it would be prejudging the defence to express at this stage any opinion cither way. The defence raised is not so shocking as appears to have been imagined by the learned Subordinate Judge. When partnerships are dissolved, it does often strike the parties to agree about some restrictions on the nature of the partnership business to be carried on by neither party. Whether the defendant is also carrying on this business or not and whether he is so entitled under the terms of the agreement bet- ween the parties, is again a matter for evidence and it would perhaps be unsafe and also undesirable to come to any positive conclusion, at this stage on the basis of any alleged oral assertion or denial. The effect of the plea of execution of the pronotes by way of compensation has also to be legitimately taken into account when. determining the right of the defendant to do the business. This aspect Iras apparently been ignored by the Court below. The Court while dealing with cases under Order 37, Rule 3, has to act with a judicial sense of responsibility in keeping the scales even and has to take thoughtful care that neither party s case is pro-judged except to the limited extent it is absolutely necessary at such initial stage. The Court while dealing with cases under Order 37, Rule 3, has to act with a judicial sense of responsibility in keeping the scales even and has to take thoughtful care that neither party s case is pro-judged except to the limited extent it is absolutely necessary at such initial stage. It must not be forgotten that at this early stage, only affidavits are before the Court: an attempt should, therefore, be made not to pre-judge the main issue with a tone of finality, nor to give an impression that the Court has so pre-judged it. It would also be advisable to refrain from using strong language in coming to findings, which must, from the very nature of things, be tentative. It need not be repeated that the pleadings and the entire record deserve to be scrutinised with a thorough judicial probe and the opinion of the Court should not give an impression of superficial approach. ( 9 ) FOR all the reasons given above, I would modify the order of the Court below and allow leave to the defendant to appear and defend the suit on the condition that adequate security is given by the defendant for payment of the amount which may ultimately be decreed by the Court. At this stage, I may appropriately point out that in the promissory note which is on a printed form, interest has been mentioned to be payable at 15 per cent per month, though it is the plaintiff s own case in the plaint that interest was payable at the rate of 15 per cent per annum. Indeed, in the receipt which is also on a printed form attached to the promissory note, interest is again mentioned at the rate of 15 per cent per month. This factor has, I should fairly point out, influenced me to some extent in taking the view at the present moment that the promissory note was not executed with the care expected of commercial people entering into a normal transaction of loan. But this impression is not intended to influence the Court below in coming to a proper judicial decision of the controversy on the entire evidence produced before it by the parties at the trial. ( 10 ) TO be fair to the counsel for the plaintiff-respondent, I may notice that he has also placed reliance on Firm New Afghan Co. But this impression is not intended to influence the Court below in coming to a proper judicial decision of the controversy on the entire evidence produced before it by the parties at the trial. ( 10 ) TO be fair to the counsel for the plaintiff-respondent, I may notice that he has also placed reliance on Firm New Afghan Co. v. Firm Sadhit Singh, but the ratio of this decision does not run counter to the view expressed above. Manohar Lal v. Nanhe Mal and Hari Singh v. Moin-ud-Din Khan, cited by the plaintiff s counsel for the purpose of inducing me to decline interference on revision have no cogency at the present point of time because it is by now well-settled that an inter locutory order may also be a case decided for the purposes of revision So far as the argument of substantial justice is concerned. I have allowed this revision with the object of doing substantial justice between the parties, which aspect was apparently ignored by the Court below. The impugned order is quite clearly tainted with illegality and material ilregularity. ( 11 ) SINCE the learned Subordinate Judge has expressed a view in terms which are somewhat strong, it would, in my opinion, be more conducive to the cause of justice to direct that this case be heard by the learned Senior Subordinate Judge. I may make it clear that I do not entertain any apprehension that the learned Subordinate Judge would not have considered the case objectively uninfluenced by his own tentative opinion however strongly expressed, but in order to avoid embarrassment to the Court and also inview of apossible sub-conscious apprehension in the mind of the parties, I do feel that in the interest of justice, this sait had better be tried by the learned Senior Subordinate Judge. ( 12 ) THE parties are accordingly directed to appear in the Court of the learned Senior Subordinate Judge on 25th April, 1966 when the defendant would be called upon to furnish adequate security to the satisfaction of the Court within two weeks. Thereafter the case should proceed in accordance with law with due despatch. There would be no order as to costs in this Court.