A. K. SIKRI ( 1 ) RESPONDENTS herein had filed a Suit against the petitioners herein under Order xxxvii of the Code of Civil Procedure. As per the averments made in the plaint, the petitioner no. 1 applied to the respondent for the post of Kitchen Trainee in the year 1987. He was selected for the kitchen training programme. He executed agreement/ service bond as well as promissory note in the sum of Rs. 1 lakh. As per the service bond, after extensive training of the petitioner no. 1, he was to serve the respondent- company for a period of not less than five years. On the petitioner no. 1 s breaching this stipulation he was to pay a sum of Rs. 1 lakh by way of liquidated damages. Petitioner no. 2 stood surety/ guarantee for due payment of this amount and in this background both the petitioners had executed a promissory note dated 1/7/1987 in the sum of Rs. 1 lakh. However, the petitioner no. 1 resigned from the services after serving respondent for about a year which resignation was accepted by the respondent vide tetter dated 17/4/1991 subject to claim under the bond/service agreement dated 1/7/1987. As the petitioners did not pay the amount inspite of serving a legal notice, respondent/plaintiff filed Suit claiming a sum of Rs. 3,14,000. 00 under Order XXXVII. The break of this amount given in the plaint is as under:- ( 2 ) THE petitioner no. 1 was served with summons of judgment on 8/09/1994 and the petitioner no. 2 was served on 7/09/1994. Both the petitioners are resident of Cochin and they were served with these summons at Cochin. Since the petitioners had already entered appearance in the Suit at an earlier stage and were represented by an advocate they contacted their advocate for moving application for leave to defend. The advocate prepared this application and sent the draft thereof to the petitioners on 14/09/1994. Petitioners sent the same back to their acquaintance, who was in touch with their advocate, on 20/09/1994. He. handed over the same to the advocate on 25/09/1994 and it was filed in the Court on 26/09/1994. Obviously there was delay in moving the application for leave to defend as it was filed beyond the period of ten days which is the limitation prescribed for moving such an application. He. handed over the same to the advocate on 25/09/1994 and it was filed in the Court on 26/09/1994. Obviously there was delay in moving the application for leave to defend as it was filed beyond the period of ten days which is the limitation prescribed for moving such an application. Accordingly, application for condonation of delay was also filed alongwith the application for leave to defend stating the aforesaid facts and seeking condonation of delay. Both the applications were heard by the learned Trial Court. The learned Trial Court was not-convinced with the reason for condonation of delay holding that each days delay had not been explained. Notwithstanding this view on condonation of delay application, the Trial court proceeded to examine the leave to defend application on merits and dismissed the same by the impugned Order dated 20/5/1995 holding that the defence plea raised by the petitioners was illusory, sham or practically moonshine. However, out of the various amounts claimed by the respondent, the Trial Court held that respondent was entitled to claim refund of Rs. 1 lakh on account of loan for training expenses and liquidated damages of Rs. 1 lakh under the terms of Agreement dated 1/7/1987 but it was not entitled to either interest on the said amount or refund of Rs. 42,000. 00 which had been paid by the respondent to the petitioner no. 1 as stipend. Consequently, respondent s Suit in the sum of Rs. 2 lakhs with proportionate cost and pendente lite interest 9% per annum has been decreed. ( 3 ) SHOW cause notice on this Revision Petition was issued on 16/08/1995 and stay of the operation of the impugned judgment and decree was granted. Ultimately by Order dated 9/4/1996, after hearing both the parties Revision petition was admitted and Interim Order was made absolute till the disposal of the revision Petition. Although this Petition was listed for final argument on various dates nobody appeared on behalf of the respondents. Ultimately arguments from the side of the petitioners were heard on 16/02/2001 and the case was reserved for judgment. The counsel for the petitioners also filed written arguments on 20/02/2001. ( 4 ) AS far as delay in filing the application for leave to defend is concerned, there was 9 days delay. Learned Trial Court held that each days delay has not been explained. The counsel for the petitioners also filed written arguments on 20/02/2001. ( 4 ) AS far as delay in filing the application for leave to defend is concerned, there was 9 days delay. Learned Trial Court held that each days delay has not been explained. According to me, learned Trial Court took a hyper-technical view of the matter in refusing to condone nine days delay for which satisfactory explanation was given by the petitioners in their application for condonation of delay. Admittedly, both the petitioners are resident of Cochin. It would take some time for them to contact their lawyer in Delhi, getting the application for leave to defend prepared, have it received in Cochin, finalising it, sending it back to Delhi and receipt thereof by their advocate in Delhi. Limitation period for filing this application is ten days. If the entire process took 19 days of delay of nine days only occurred, this delay was satisfactorily explained and should have been condoned. However, this aspect should not detain us further inasmuch as even the Trial Court ultimately decided the application for leave to defend on merits. Let us therefore focus on the merits of the application for leave to defend filed by the petitioners and examine as to whether the impugned order of the learned Trial Court rejecting this application is proper in law. ( 5 ) A perusal of the application for leave to defend showed that following pleas were raised by the petitioners:- 1. The Agreement and Promissory Note dated 1/7/1987 was got executed from the respondent undercoercion and undue influence. 2. There was an assurance given that this document are mere formalities and were not meant to be acted upon. 3. The documents were unconscionable, opposed to public policy and not enforceable as the respondent could not bind the petitioner no. 1 for a period of five years to do the job for the respondent. 4. Respondents were estopped from acting upon the Agreement and promissory note because by its subsequent conduct no intention was expressed that it would enforce the said Agreement and promissory note in case the petitioner no. 1 tenders his resignation. In support of this contention the petitioners relied upon the correspondence exchanged between the parties during the relevant period between September 1990 and May, 1991 wherein the petitioner no. 1 had alleged that on account of inhumane exploitation of defendant no. 1 tenders his resignation. In support of this contention the petitioners relied upon the correspondence exchanged between the parties during the relevant period between September 1990 and May, 1991 wherein the petitioner no. 1 had alleged that on account of inhumane exploitation of defendant no. 1 by the plaintiff, defendant no. 1 developed High blood Pressure and bleeding from nose in September 1990 and he was admitted to St. lsabel Hospital, Madras on 22/09/1990 and resume ; his duty in December 1990 but he again fell ill and since there was no one to look after him in Delhi he, therefore, reached back his home town in Cochin without informing the plaintiff. He was diagonosed a case of Epistasis and mild hyper tension and was under treatment and could not resume the duty. A number of certificates and pathological reports were filed in this regard. " ( 6 ) IT may be mentioned here that when the petitioner no. 1 started absenting, the respondents had written letter dated 22/12/1990 calling upon him to report for duty which was followed by few reminders. Thereafter, vide letter dated 4/2/1991 defendant no. 1 responded to the above letters of the plaintiff and informed that he was undergoing treatment of hyper-tension which inspite of medication has not been under control and intimating that if the management was unable to accept his request for leave on medical grounds, he requested the plaintiff to relieve him from service as he would not be in a position to report for duty for a period of three months. Vide letter dated 26/1/1991, the plaintiff declined the request of defendant no. 1 for grant of medical leave and treated the defendant as absent from duty w. e. f. 13/12/1990 and also declined the request of the defendant to relieve him from service as requested by him. At the same time, the plaintiff advised the defendant that incase he wanted to resign from the service, he should submit appropriate letter of resignation and addressed to the General manager, welcom Group, Hotel Maurya Sheraton. Vide an undated letter the defendant responded to the above letter of the plaintiff dated 26/2/1991 and after stating the circumstances under which he was unable to continue his work, finding no other alternative, requested the plaintiff to accept his resignation, which according to the defendant, he was forced to submit on account of his ill health. Vide an undated letter the defendant responded to the above letter of the plaintiff dated 26/2/1991 and after stating the circumstances under which he was unable to continue his work, finding no other alternative, requested the plaintiff to accept his resignation, which according to the defendant, he was forced to submit on account of his ill health. A prayer was also made by defendant no. 1 to the plaintiff to treat his case most sympathetically to accept his resignation. Vide letter dated 7/5/1991, plaintiff accept the resignation of the defendant from service w. e. f. 13/12/1990, but without prejudice to the claims of the plaintiff under the terms of agreement dated 1/7/1987. ( 7 ) THE petitioner no. 1 was subject to inhuman treatment and was made to work for 16-18 hours a day in most humiliating conditions and therefore respondent cannot be allowed to realise the amount under the Agreement. ( 8 ) NONE of the aforesaid pleas raised in the application for leave to defend found favour with the learned Additional District Judge. Although there may not be much substance in the plea relating to coercion and undue influence or the plea that such a document would not be acted upon, some of the contentions raised by the petitioners in their application for leave to defend had raised triable issues. No doubt when employer imparts such a training, it has right to bind the employee to serve the employer for a reasonable period of time. However, whether five years period would be reasonable or excessive is a question which needs to be determined. It would depend on the nature and extent of training imparted which require evidence before determining this issue. Further the facts as mentioned in the application for leave to defend and the correspondence exchanged between the parties did disclose that the petitioner no. 1 was not medically fit at the relevant time and therefore was not in a position to resume duties. It is this reason which forced petitioner no. 1 to submit the resignation, according to him. It was not a case where he got some other job or wanted to desert the respondent after getting better job opportunity or with some oblique motives. It is this reason which forced petitioner no. 1 to submit the resignation, according to him. It was not a case where he got some other job or wanted to desert the respondent after getting better job opportunity or with some oblique motives. So, triable issue does arise, as to whether for reasons beyond his control the petitioner No. 1 resigned from job and such a reason would absolve him from his liability under the service Agreement. It may be mentioned here that learned counsel for the petitioners argued that as the petitioner no. 1 was not able to serve on account of ill health, doctrine of frustration as contained in Section 56 of the Indian contract Act gets attracted. He referred to illustration (e) of the said Section submitting that it squarely applies. This illustration reads as follow:- (E) "a contract to act at a theatre for six months in consideration of a sum, paid in advance by B. On several occasions A is too, ill to act. The contract to act on those occasions becomes void. " ( 9 ) THEREFORE, I am of the opinion that the plea made in the application for leave to defend raised triable issues which could not be said to be sham or monshine. The petitioners were therefore entitled to unconditional leave to defend keeping in view the principles laid down by the Supreme Court in the case of M/s. Mechalec Engineers and Manufacturers versus M/s. Bassi Equipment Corporation reported in AIR 1977 SC 577 . ( 10 ) TO be fair to the learned counsel for the petitioners, it may be mentioned that the counsel also argued that kitchen training programme did not impart any training whatsoever but petitioner was made to do menial jobs. He also argued that the bond in question for such a long period was opposed to public policy and relied upon the following judgments:- 1. MNS Drapers (a firm) Vs Reynolds reported in (1957) 1 W. L. R. page-9 (18 ). 2. Herbet Morris, Limited Vs Saxelby reported in (1916) 1 A. C. page-688. 3 A Schroeder Music Publishing Co. Ltd. Vs Macaulay (Formerly tnstone) reported in (1974) 1 W. L. R. page 1308 (1313, 1316 ). 4. Nag/e Vs Feilden and Others reported in (1966) 2 Q. B. page-633. 5. 2. Herbet Morris, Limited Vs Saxelby reported in (1916) 1 A. C. page-688. 3 A Schroeder Music Publishing Co. Ltd. Vs Macaulay (Formerly tnstone) reported in (1974) 1 W. L. R. page 1308 (1313, 1316 ). 4. Nag/e Vs Feilden and Others reported in (1966) 2 Q. B. page-633. 5. Graig and others Vs /nso/e and others = World Series Cricket PTY limited Vs Insole and others reported in (1987) 1 W. L. R. page 302. ( 10 ) HOWEVER, as I have held that there are triable issues which need examination and as the matter is being remanded back to the Trial Court, it is not necessary for me to give my final view on this aspect. ( 11 ) THE result of the aforesaid discussion is that this Revision Petition succeeds. The impugned order dated 20/5/1995 and consequently the decree based in terms thereof is hereby set aside. The petitioners are granted unconditional leave to defend and to contest the Suit filed by the plaintiff. ( 12 ) THERE shall be no order as to costs. ( 13 ) PARTIES to appear before the Trial Court on 27/03/2001.