Mukul Mudgal ( 1 ) THESE are the appeals filed under Section 10 of the Delhi High court Act against the order of the learned Single Judge dated 14th of August, 1995 by which the learned Single Judge declined to grant leave to defend to the three defendants, vinod Kumar Gupta, the first defendant, M/s. Rockfield Developers, the second defendant and Ramesh Chand Suri, the third defendant (who are the appellants in these appeals) and consequently decree the suit, filed by the plaintiff-Sanjay Gupta, the respondent herein under Order XXXVII of the Civil Procedure Code (for short the civil Procedure Code ), decreeing that the plaintiff/respondent was entitled to recover Rs. 10,18,225. 00 from the first defendant, Rs. 41,42,471. 00 - from the second defendant and Rs. 16,08,161. 00 from the third defendant From the date of the plaint, the learned Single judge also awarded 12% per annum simple interest on the principal sum till the date of realisation instead of granting 36% per annum with quarterly rests till the date of realisation since the plaintiff had already charged interest @ 36% per annum with quarterly rests till the date of plaint and learned Single Judge thus felt that the defendants/appellants should not be further burdened with the same amount of interest. However, the learned Single Judge did not pass the decree jointly and severally. Learned Single Judge also held as follows : "for all these reasons, IA 7843/94, filed by the first defendant for leave to defend, is dismissed. IA 7605/94, filed by second defendant for condoning the delay in filing the application for leave to defend, is dismissed and IA 7533/94, filed by second defendant to leave to defend, is also dismissed. I. A. 7747/94 for condoning me delay in filing O. A. 7/94, filed by the second defendant, is also dismissed. I. A. 4760/94, filed by the third defendant, is dismissed. There shall be no order as to costs in all applications. " ( 2 ) THE plaint avers as follows: (A) that in the first week of May, 1989, the defendant No. 1/appellant herein approached the plaintiff/respondent and asked for a loan of Rs. I. A. 4760/94, filed by the third defendant, is dismissed. There shall be no order as to costs in all applications. " ( 2 ) THE plaint avers as follows: (A) that in the first week of May, 1989, the defendant No. 1/appellant herein approached the plaintiff/respondent and asked for a loan of Rs. 10 lacs for about six months and offered to pay interest @ 36% per annum at quarterly rests, i. e. , compoundable on every three months; (b) that since the defendant No. 1 had acted as a property agent/broker of the purchase for house by the plaintiff/respondent, the plaintiff agreed to advance loan of Rs. 10 lacs to defendant No. 1 with the interest stipulated above; (c) that consequently a sum of Rs. 7 lacs by a cheque dated 4/5/1989 was given in the name of Ramesh Chand Suri, defendant No. 3 to defendant No. 1 and a sum of Rs. 3 lacs was given in his own name; (d) that the defendant No. 1 agreed and promised to repay the said amount with interest stipulated above within a period of six months; (e) that after the period of six months, the plaintiff/respondent herein asked for the payment of the said loan but the defendant No. 1 delayed in paying the amount due by stating that he will pay the loan after selling some of his lands; (f) that further sum was sought by defendant No. 1 and he promised to repay the amount after making a profit on a deal. The interest was 36% per annum in the manner as agreed earlier; (g) that consequently on the representation of the defendant No. 1 that defendant No. 2-M/s. Rockfield Developers Pvt. Ltd. was his own company and he was the Director and fully authorised and competent to take loan for and on behalf of the company. Cheque dated 5/1/1990 for Rs. 6 lacs and cheque dated 5/1/1990 for Rs. 4 lacs were given in favour of defendant No. 2-M/s. Rockfield Developers Pvt. Ltd. at the same rate of interest, i. e. , 36% per annum; (h) that on 27/1/1990 another sum of Rs. 4 lacs towards loan was paid to defendant No. 2 on the representation of defendant No. 1 that this would help in finalising the deal earlier entered into. 4 lacs towards loan was paid to defendant No. 2 on the representation of defendant No. 1 that this would help in finalising the deal earlier entered into. The rate of interest was 36% per annum with quarterly rests as agreed to earlier; (i) that thereafter on receipt of sum of Rs. 24 lacs, defendant No. 1 in order to show his bonafides furnished securities by way of mortgaging the agricultural land measuring 5 acres one bigha by way of an equitable mortgage in favour of the plaintiff by depositing the title deeds; (j) that since the defendant No. 1 defaulted to repay the loans taken by him he again gave an assurance by acknowledgement dated 21/9/1991 where it was acknowledged and confirmed that defendant No. 1-Vinod Kumar gupta received the amount of Rs. 24 lacs in the name of Ramesh Chand suri, V. K. Gupta and M/s. Rockfield Developers Pvt. Ltd. which he was obliged to return back with interest @ 36% per annum compoundable with every three months. By this acknowledgement, the defendant No. 1 also acknowledged the deposit of the title deeds of his agricultural farm land measuring 5 acres one bigha by way of equitable mortgage; (k) that the receipt/acknowledgement further stated that the adjustment of Rs. 50,000. 00 was made by defendant No. 1 as the commission due to him for bringing the deal of 14, Anand Lok as a property dealer; (l) that consequently by the acknowledgement dated 21/9/1991,the defendant no. 1 promised to pay the balance sum of Rs. 23,50,000 / - alongwith interest at 36% per annum; (m) that the sale deed of agricultural land measuring 12 bighas were also handed over to the plaintiff by the defendant; (n) that on repeated demands the defendant No. 1 paid a sum of Rs. 7 lacs by a cheque dated 22/1/1992 drawn on Punjab National Bank, Greater Kailash, part n. New Delhi, issued in the name of Shri Ramesh Chand Suri as part payment towards the amount of Rs. 17,95,470. 00 including interest then due; (o) that the amount of interest due from defendant No. 1 in the name and/or account of Shri Ramesh Chand Suri, defendant No. 3 was Rs. 10,95,470. 00 the said amount of Rs. 7 lacs was treated as part payment towards the interest rate due and left the balance payment of Rs. 3,95,470. 00 towards interest and Rs. 10,95,470. 00 the said amount of Rs. 7 lacs was treated as part payment towards the interest rate due and left the balance payment of Rs. 3,95,470. 00 towards interest and Rs. 7 lacs as principal amount; (p) that consequently the defendant No. 1 was liable to pay a sum of Rs. 10,95,470. 00 in the name and account of defendant No. 3; (q) that an accommodation was sought by defendant No. 1 upto June, 1992 for repayment of the entire loan amount with interest. This time was extended upto October, 1992 at the behest of defendant No. 1; (r) that consequently since no further payment was made, the plaintiff/ respondent herein filed the present suit, claiming from defendant No. 1- vinod Kumar Gupta a sum of Rs. 10,18,225. 00 after adjustment of Rs. 50,000. 00 towards commission; from defendant No. 2-M/s. Rockfield developers Pvt. Ltd. Rs. 41,42,471. 00 the amount due including interest and from defendant No. 3, Ramesh Chand Suri Rs. 16,08,162. 00 the amount due including interest after adjusting Rs. 7 lacs. Consequently the plaintiff claimed a sum of Rs. 67,68,858. 00; and (s) consequently a decree was sought for the recovery of Rs. 67,68,858. 00 against the three defendants jointly/severally alongwith pendente tile and future interest @ 36% per annum till realisation. Attachment and sale of the agricultural land was also sought which relief was later on given up. ( 3 ) ALL the three defendants/appellants had sought leave to defend. We are taking up first the case set up by defendants 2 and 3, who are appellants in appeals [fao (OS) nos. 297/95 and 324/95] as their case is that there was no formal written agreement with the plaintiff/respondent entiling the plaintiff/respondent to seek a decree under order XXXVII, Civil Procedure Code and a suit against them was thus not maintainable under Order xxxvii, Civil Procedure Code. ( 4 ) DEFENDANT No. 2-M/s. Rockfield Developers Pvt. Ltd. has pleaded in its application for leave to defend as under: (A) that defendant No. 1, a property dealer, had approached the defendant No. 2 for sale of its land situated at Village Jonapur, Mehrauli, New Delhi and the said land was agreed by the defendant No. 2 to be sold for Rs. 2. 2. 5 crores and it was agreed between the defendants 1 and 2 that the purchaser of the property, i. e. , the plaintiff would pay the earnest money of Rs. 25 lacs by 5. 2. 1990 and thereafter it is defendant No. 2 who will take steps to obtain clearance under Form 37-1 of the Indian Income-tax Act after executing regular agreement to sell and the sale deed shall be executed against the balance amount of Rs. 2. 5 crores within 30 days of the receipt of the clearance under Income-tax Act; (b) that it was also agreed that if the sale was not completed within 30 days of clearance from the Appropriate Authority then the earnest money paid in full would stand forfeited; (c) that the defendant No. 2/appellant herein did not know the plaintiff/ respondent and had never any direct dealing with him and defendant No. 1 had conducted the transaction on behalf of the plaintiff as a property broker. However, a sum of Rs. 25 lacs towards earnest money was not paid by the plaintiff within the time stipulated i. e. , 5/2/1990 and only a sum of Rs. 14 lacs was paid to defendant No. 2 through defendant No, 1 in instalments comprising of Rs. 10 lacs by cheque dated 5/1/1990 and Rs. 4 lacs by a cheque dated 27/1/1990 and since the balance amount of Rs. 11 lacs was not paid towards earnest money as agreed to by the plaintiff in spite of repeated reminders, the amount already paid stood forfeited on 6/2/1990. Thus it was denied that any sum was due from defendant No. 2 to the plaintiff; and (d) that the direct dealings and the receipt of loan from the plaintiff was denied and in fact plaintiff/respondent failed to honour his obligation to pay Rs. 25 lacs towards earnest money and consequently unconditional leave to defend the suit was sought. ( 5 ) BY the reply to the application of defendant No. 2, seeking leave to defend, the plaintiff/respondent by and large reiterated the contents of the plaint by labelling the defence as false, baseless, bogus, specious, illusory, sham, mala fide, unbelievable, implausible and a moonshine practically. The defence was also labelled as frivolous and absurd. It was also stated that the market price of Rs. The defence was also labelled as frivolous and absurd. It was also stated that the market price of Rs. 1 crore per acre suggested by the defendant No. 2 that the purchase of the property at Village Jonapur was fantastic and absurd. The right to forfeit and the actual forfeiture was also denied. It was termed as preposterous and unbelievable that defendant No. 2 purchased the land. at Rs. 9,75,000. 00 and would sell the land thereafter for Rs. 1 crore per acre at the relevant time. The prices informed to the plaintiff were more than Rs. 10 to 11 lacs for 12 bighas and the sum of Rs. 2. 5 crores as suggested by defendant No. 2 was an unbelievable phenomena. It is also averred that the application for leave to defend was filed by defendant No. 2 in collusion with defendant No. 1 with an oblique motive to swallow the money loaned by the plaintiff/respondent. ( 6 ) DEFENDANT No. 3, Shri Ramesh Chand Suri made the following averments in his application for leave to defend: (A) that there was no privity of contract against the defendant No. 3 and the suit was itself not maintainable particularly when there was no written contract, no suit filed under Order XXXVII, Civil Procedure Code can be filed; (b) that the sum of Rs. 7 lacs was given in the name of defendant No. 3 through defendant No. 1 and there is no other allegation against defendant No. 3. It was admitted in the plaint that on 22/1/1992the defendant No. 3 repaid the amount and thus the amount given to defendant No. 3 having been returned, suit was not maintainable against defendant No. 3; (c) that in fact that defendant No. 3 had been approached on behalf of the plaintiff by defendant No. 1/05/1989 for buying the agricultural land belonging to defendant No. 3, situated at Village Kishan Garh, Tehsil mehrauli; (d) that consequently defendant No. 3 became agreeable to sell 30 acres of the land for a total consideration of Rs. 60 lacs; (e) that consequently Rs. 60 lacs; (e) that consequently Rs. 7 lacs was given by the plaintiff to defendant No. 1 as token money with the assurance by the defendant No. 1 that the balance amount would be paid shortly and the agreement would be arrived at, and thereafter permission would be sought from the Competent Authority; (f) that however, defendant No. 1 did not turn up after making the payment of Rs. 7 lacs. Eventually since the defendant No. 1 told the defendant No. 3 that the purchaser had backed out and defendant No. 3 though entitled to forfeit the token money, a chequedated 22/1/1992 for Rs. 7 lacs was given by defendant No. 3 in favour of the plaintiff to refund the earnest money; and (g) that the plaintiff had never met the defendant No. 3 nor had any direct dealings and all the deals were through defendant No. 1. Consequently no question of any interest having been agreed to be paid does not arise. ( 7 ) IN its reply to the application, filed by defendant No. 3, seeking leave to defend, the plaintiff/respondent apart from reiterating the contents of the plaint and labelling the defence as false, wholly mala fide and a gross abuse of the process of the Court has further stated that the defence is wholly false, frivolous, vexatious, designed and motivated to delay the suit and its disposal and defence was termed as wholly illusory , sham and practically moonshine and not bom fide. The plea of the defendant No. 3 that plaintiff had approached him for buying land, belonging to defendant No. 3 at Village kishan Garh was denied and it was also stated that the plaintiff/respondent never asked the defendant No. 1/appellant to purchase any land from defendant No. 3 at any place at all. It was also stated that the defendant No. 3 s plea that the plaintiff would advance a sum of Rs. 7 lacs as token money to defendant No. 3 for acquiring agricultural land to sell or would agree to pay the balance amount with out any agreement in writing is totally unbelievable. However, it was not denied that the plaintiff had not personally met defendant No. 3. 7 lacs as token money to defendant No. 3 for acquiring agricultural land to sell or would agree to pay the balance amount with out any agreement in writing is totally unbelievable. However, it was not denied that the plaintiff had not personally met defendant No. 3. ( 8 ) DEFENDANT No. 1/appellant in FAO (OS) 16/95, pleaded in his application for leave to defend, inter alia as follows : (A) that the suit does not fall within the ambit of Order 37, Civil Procedure Code as it is neither based upon a bill of exchange, hundi and promissory note nor it is based upon a written contract; (b) that since as a property agent the defendant No. 1 had been conducting sale transaction on behalf of the plaintiff and his family matters, the plaintiff approached the defendant No. 1 for purchase of agricultural farm land in village Kishan Garh, Tehsil Mehrauli. Accordingly, the defendant No. 1 negotiated with defendant No. 3 for purchasing his land at Kishan Garh on behalf of the plaintiff for Rs. 60 lacs and accordingly Rs. 7 lacs were paid to defendant No. 3 by a cheque issued by the plaintiff and balance was to be paid within 2 months, i. e. , by 4/7/1989 and 20% was to be paid within 15days of 4/5/1989 and balance by 4/7/1989. In spite of repeated requests by defendant No. 1 the plaintiff failed to make the payment of either the earnest money or the balance sale price. The plaintiff was thus not willing to perform his part of the contract and the defendant No. 3 was entitled to forfeit the amount, nevertheless he paid back Rs. 7 lacs by a cheque dated 21/1/1992 to the plaintiff; (c) that similarly another deal for the plaintiff was negotiated by defendant no. 1 for the sale of farm land of 2. 5 acres in Village Jonapur, Tehsil mehrauli for Rs. 2. 5. crores with earnest money of Rs. 25 lacs to be paid on or before 5/2/1992 and the balance sum of Rs. 2. 25 crores to be paid within 30 days of clearance from the Income-tax Authorities. The agreement between the parties further provided that if payment of earnest money and balance payment was not made within the stipulated period, then the earnest money was to stand forfeited. The plaintiff thus made payment of rs. 2. 25 crores to be paid within 30 days of clearance from the Income-tax Authorities. The agreement between the parties further provided that if payment of earnest money and balance payment was not made within the stipulated period, then the earnest money was to stand forfeited. The plaintiff thus made payment of rs. 10 lacs by two cheques on 5/1/1990 which were received by defendant no. 2. On 27/1/1990 a further sum of Rs. 4 lacs was paid by cheque. Since plaintiff only paid a total of Rs. 14 lacs instead of Rs. 25 lacs within the stipulated time, the amount of Rs. 14 lacs was forfeited by defendant No. 2 and no grievance can be raised against defendant No. 1 on this account; (d) that Rs. 3 lacs received by defendant No. 1 from the plaintiff by cheque dated 24/5/1989 was part payment of commission due to defendant No. 1 because of various transactions carried on for plaintiff by defendant No. 1 as a property broker; (e) that the plaintiff was liable to pay a sum of Rs. 8,08,000. 00 for the sale of 35 acres of land at Chatarpur belonging to Tajpal Tyagi and a sum of Rs. 2 lacs for the sale of 14, Anand Lok purchased by the plaintiff through defendant no. 1 for Rs. 94 lacs and the plaintiff has wrongly stated that he was liable to pay defendant No; 1 only Rs. 50. 000. 00. The plaintiff was also liable to pay rs. 34,000. 00 as commission for purchase of 3. 75 acres of land of Shahnaz pura in Village Satbari for Rs. 17 lacs. Thus it was the plaintiff who was indebted to the defendant No. 1 for Rs. 7,42,000. 00 after giving allowance for the repayment of Rs. 3 lacs; (f) that the letter dated 21/9/1991was obtained by misrepresentation and fraud by the plaintiff by holding out that these were needed in connection with an income-tax raid on the premises of plaintiff. Thus it was the plaintiff who was indebted to the defendant No. 1 for Rs. 7,42,000. 00 after giving allowance for the repayment of Rs. 3 lacs; (f) that the letter dated 21/9/1991was obtained by misrepresentation and fraud by the plaintiff by holding out that these were needed in connection with an income-tax raid on the premises of plaintiff. The defendant No. 1 had agreed to help the plaintiff in his time of need due to his business relations with plaintiff but due to the sudden arrival of some visitors of plaintiff s father, signatures on blank paper were hurriedly taken from defendant No. 1 which were given in good faith, which good faith was abused by the plaintiff by fabricating a confirmation/acknowledgement letter and the document dated 21/9/1991 as sought to be portrayed by plaintiff was never executed by the defendant No. 1; and (g) that the title deeds of 5 acres of defendant No. 1 s land were given to the plaintiff as he evinced an intent in buying the said property and wanted to verify the title of defendant No. 1 and the story of equitable mortgage is part of a fraud practised on defendant No. 1 by plaintiff. ( 9 ) WE are taking up at first the pleas taken by defendants 2 and 3 because in our view in case leave to defend is granted to defendants 2 and 3, then leave to defend has also to be granted to defendant No. 1 because the case of defendant No. 1/even according to the plaint was inexorably linked with the cases of defendants 2 and 3 particularly when joint and several decree had been claimed against defendants 1,2 and 3. ( 10 ) A perusal of the averments made in the plaint, as have been set out earlier, requires us to set out the written acknowledgement/receipt dated 21/9/1991, given by defendant No. 1 to the plaintiff/respondent which reads as under: "1 hereby acknowledge that I have received the following amounts from Mr. Sanjay Gupta, son of Mr. L. R. Gupta, resident of 6, Anand Lok, New Delhi, particulars of which are given below, in the name of respective persons/companies, which I have to return alongwith interest @ 36% per annum compoundable every 3 months. 1. Sanjay Gupta, son of Mr. L. R. Gupta, resident of 6, Anand Lok, New Delhi, particulars of which are given below, in the name of respective persons/companies, which I have to return alongwith interest @ 36% per annum compoundable every 3 months. 1. htm note: All the cheques are drawn on American Express Bank Ltd. , New Delhi i have already deposited the title deeds of my agricultural farm land measuring about 5 acres situate in Village Dera, Tehsil Mehrauli, New Delhi, by way of equitable mortgage as security for payment of the above loan. I have also agreed which I confirm and acknowledge to have agreed that in case I do not refund the aforesaid amount together with interest @ 36% per annum compoundable every three months, then Mr. Sanjay Gupta would be entitled to sell the aforesaid agricultural land without any reference to me and if there is a shortfall even after that, then he would be entitled to recover the balance from my other assets for the payment of aforesaid amount of loan of Rs. 23. 50. 000. 00 alongwith interest @ 36% per annum at quarterly rest i. e; every three months. " ( 11 ) CERTAIN conclusions emerge very clearly from the pleadings extracted above. While it has been averred that defendant No. 1 was the owner of defendant No. 2- company and Director thereof, nothing has been suggested in the plaint regarding relationship between defendant No. 1 and defendant No. 3, defendants 2 and 3 and defendants 1,2 and 3. Except stating that defendant No. 1 wanted the cheque in the name of defendant No. 3, it is not stated even in the plaint as to why a cheque was given in the name of defendant No. 3 by plaintiff/respondent. In fact the plaint itself admits that the sum of Rs. 7 lacs given to defendant No. 3 was returned. In the plaint it is averred that a sum of Rs. 10 lacs was advanced by the plaintiff to defendant No. 1 without any written agreement on the date when the said cheques for Rs. 3 lacs and Rs. 7 lacs were tendered on 4. 5. 1989. ( 12 ) IN our view, the following circumstances emerge from the pleadings of the parties: (A) that there is no averment in the plaint that the cheque for Rs. 7 lacs dated 3. 5. 3 lacs and Rs. 7 lacs were tendered on 4. 5. 1989. ( 12 ) IN our view, the following circumstances emerge from the pleadings of the parties: (A) that there is no averment in the plaint that the cheque for Rs. 7 lacs dated 3. 5. 1989 in me name of defendant No. 3 and the cheque for Rs. 6 lacs and rs. 4 lacs dated 5/1/1990 in the name of defendant No. 3 were encashed by defendant Nos. 2 and 3 respectively. There is also no averment in the plaint that the plaintiff demanded back the said sums of money from defendants 2 and 3; (b) that it is not explained in the plaint as to why the plaintiff/respondent would have advanced the sum of Rs. 24 lacs through defendant No. 1 to defendant Nos. 2 and 3 without there being any agreement in writing with any of the defendants at the time when the sums were advanced; (c) that the acknowledgement/receipt in writing which too is by defendant no. 1 only, is only said tobe signed much later as per the plaint on 21/9/1991; (d) that the said written acknowledgement dated 21. 9. 1991 which occurs on two pages does not inspire such confidence so as to found on it a decree without trial and the case of defendant No. 1 that this was a fraudulently created document from blank papers cannot be discounted at this stage. The spaces between the writings and the beginning of narration on the second page, rules out the possibility of the defendant No. 1 s case being termed as moonshine. In face it is for the plaintiff to have explained the above factors. Consequently the summary suit was not the remedy; (e) that the said acknowledgement dated 21/9/1991 is neither stamped nor drawn on a stamp paper nor is there any signature or date on the 2nd page; (f) that there is nothing in writing by the defendants 2 and 3, and in so far as defendants 2 and 3 are concerned, a suit under Order XXXVII, Civil Procedure Code cannot lie particularly since the plaintiff claims a decree against the three defendants jointly/severally; (g) that consequently once the defendants 2 and 3/appellants herein are granted leave to defend the suit, defendant No. 1 has also to be granted leave to defend. The plaint itself inexorably links the role of 3 defendants; (h) that consequently the nature of, and reason for, the payment made by the plaintiff/respondent through defendant No. 1 to defendant Nos. 1 and 2 is not free from doubt and the averments made in the plaint do not inspire such confidence as to warrant a decree without trial; (j) that on the contrary the defendants versions set out in the applications for leave to defend are more believable and the defendant No. 3 in any event has paid back the sum of Rs. 7 lacs and this very fact has also been acknowledged by the plaintiff in the plaint. Significantly even in the receipt issued on 21/9/1991 by the defendant No. 1 he has stated that he, i. e. . defendant No. 1 would be liable to refund the amount with interest @ 36% even this receipt does not say that the defendant No. 3 has promised to refund the amount with interest @ 36%. Even the plaint in Para 2 avers that the defendant No. 1 agreed and promised to repay the amount of Rs. 10 lacs (including Rs. 7 lacs paid to the defendant No. 3) with 36% interest per annum with half yearly quarterly rests. Nowhere in the plaint it is even averred that the defendant No. 3 agreed to pay interest on the amount of rs. 7 lacs @ 36% per annum. The only statement qua interest in so far as defendant No. 3 is concerned in Para 14 wherein 36% interest has been calculated against defendant No. 3. ( 13 ) IT is indeed inexplicable as to why the plaintiff would issue a cheque in the name of defendant No. 3 without knowing him. Considering the two rival versions about the cheque issued in the name of defendant No. 3, prima facie the version of defendant No. 3 supported by that of defendant No. 1 appears more probable and natural. The plaintiff has not explained how he advanced a sum of Rs. 7 lacs to the defendant No. 3 without knowing him and merely at the behest of defendant No. 1. It is highly improbable that a sum of Rs. The plaintiff has not explained how he advanced a sum of Rs. 7 lacs to the defendant No. 3 without knowing him and merely at the behest of defendant No. 1. It is highly improbable that a sum of Rs. 7 lacs would be advanced as loan to a property dealer but not in his name but in the name of a third party with whom the plaintiff lays no claim of acquaintance and that too without any contemporaneous written receipt/acknowledgement by either defendant No. 1 or 3. In any case the defendant No. 3 cannot be bound in law by an acknowledgement given on 21. 11. 1991 or any other date by defendant No. 1 The plaintiff itself admits that the sum of Rs. 7 lacs given by the plaintiff to defendant No. 1 in the name of defendant No. 3 was returned back. This is in our view was sufficient reason to grant leave to defend to the defendant No. 3. The only acknowledgement/ receipt in writing was given only by defendant No. 1 on 21/9/1991 which is almost two years and 4 months later, In fact it defies comprehension why the plaintiff would advance a sum of Rs. 24 lacs as loan to the three defendants without a contemporaneous written acknowledgement and/or agreementmerely on the basis of a casualacquaintance. with defendant No. 1, who is said to have figured only in one property deal of the plaintiff/respondent. The acknowledgement for the various cheques, the last of which was issued on 27/1/1990, was only said to be given on 21/9/1991. The said acknowledgement/receipt also makes very curious reading and is on two sheets as extracted above and defendant No. 1 s version of a fraudulent creation of the document from blank signed papers obtained from him cannot be disbelieved at this stage. ( 14 ) FURTHERMORE the case before us was argued on 10 different dates. The very fact that the matter has taken so many days to conclude the arguments and the voluminous authorities cited by the respondent/plaintiff as well as the appellants/defendants itself shows that substantial questions are involved in the suit, which could not and ought not be determined in a summary suit and leave to defend ought to have been granted. ( 15 ) IN so far as the impugned order dated 14th of August, 1995 is concerned. ( 15 ) IN so far as the impugned order dated 14th of August, 1995 is concerned. Paras 12 and 13 reads : "defendant No. 1 filed the petition for leave to defend on 25/9/1994. Defendant No. 2 filed the petition on 16/5/1994 and the third defendant on 25/8/1994. Under normal circumstances these dates cannot be of any moment. But when defendant No. 1 a centrifugal force would appear to have formulated a scheme in filing the petitions. In the Court also he had attempted to play a game so that he could succeed in getting leave to defend. Third defendant does not claim to have had any direct contact with the plaintiff. As soon as he was served with the summons for judgment, he must have asked the first defendant to make arrangements for engaging a Counsel and at the insistence of the first defendant the petition must have been drafted and third defendant had signed the same. The case of the second defendant cannot be different. It would be clear from order dated 3/8/1994 by the Joint Registrar. The first defendant had given his address in the Memo of Appearance different from what was given by the plaintiff. Therefore, he managed to get the fresh summons issued to him. Therefore, defendant Nos. 1,2 and 3 were aware of the case in June, 1994 itself because the first defendant was the one for all the defendants adopting a Gilbertian process. " ( 16 ) THE learned Single Judge further observed in Paras 16 and 17 as follows : "the third defendant admits that he does not know the plaintiff. When such an obligation had been undertaken by him by receiving money he cannot seek to wriggle out by saying that what was received in 1989 had been paid back in january, 1992 and, therefore, the plaintiff cannot make any claim against him. On the date when petition was drafted i. e. in August, 1994 defendant No. 3 must have been aware of the averments in the plaint. When there is a specific plea in the plaint that the first defendant had acknowledged in writing on 21/9/1991 the amount payable by all the defendants, there is no denial by the third defendant. It is note worthy the cheque was issued by the third defendant on 22/1/1992, long after the acknowledgement in writing by the first defendant. When there is a specific plea in the plaint that the first defendant had acknowledged in writing on 21/9/1991 the amount payable by all the defendants, there is no denial by the third defendant. It is note worthy the cheque was issued by the third defendant on 22/1/1992, long after the acknowledgement in writing by the first defendant. It is not the case of the third defendant that first defendant made the acknowledgement without his knowledge and first defendant had tried to over reach him. He has no grievance against first defendant on any account. Therefore, the cheque dated 22/1/1992 is stated to have been issued by the third defendant and given by the first defendant to plaintiff can be only towards interest and not in full and final settlement of the claim of the plaintiff against first defendant and the third defendant. There is nothing in writing from third defendant and the first defendant that the cheque was issued on 22/1/1992 in full satisfaction of the claim of the plaintiff. " ( 17 ) THUS even on the averments made in the plaint, the following finding of the learned Single Judge "that the cheque dated 22/1/1992 by defendant No. 3 paid to plaintiff was towards interest is erroneous and unsustainable. The learned Single Judge has further compounded the error by observing that there was nothing in writing from the 1st and 3rd defendants to show that the cheque issued on 22/1/1992 was in full and final satisfaction of the claim of the plaintiff. The learned Single Judge completely lost sight of the fact that there was nothing from the plaintiff s side in writing either to indicate that he had appropriated Rs. 7 lacs paid on 22/1/1992towards interest. The learned Single judge has ignored the fact that the plaintiff was seeking a joint and several decree in a summary suit against the defendants with interest @ 36% and it was the plaintiff/ respondent, who had failed to produce a contract in writing at least against defendants 2 and 3/appellants and thus the order declining leave to defend cannot be sustained and has to be set aside. The burden of proof lay on the plaintiff which has at this stage not yet been discharged. In the absence of any document in writing issued by the plaintiff appropriating the said sum of Rs. The burden of proof lay on the plaintiff which has at this stage not yet been discharged. In the absence of any document in writing issued by the plaintiff appropriating the said sum of Rs. 7 lacs only towards interest, the finding of the learned single Judge that the payment made by defendant No. 2 could only be towards interest is unsustainable. The plaintiff had not even pleaded that defendant No. 3 had agreed in writing to pay interest at 36% per annum and thus this finding cannot be sustained. Furthermore the observation of the learned Single Judge to the effect that defendant No. 3 after the receipt of summons must have asked the 1st defendant to make arrangements forengaging a Counsel and at the instance of defendant No. 1 the petitionmust have been drafted and me third defendant had signed the same, are totally hypothetical. The foundation for denying the leave to defend stems from totally unsustainable findings and the order of the teamed Single Judge thus cannot be upheld. The plaintiff/ respondent in his reply to application for leave to defend says in Para E (a) that defendant no. 1 is a property agent and he acted as a property agent only in respect of one property, i. e. , 14, Anand Lok. If this was the only acquaintance between the plaintiff and defendant no. 1 in that case the plaintiff s version of loan of Rs. 24 lacs to defendant No. 1 on such cursory acquaintance is unnatural and the plaintiff s generous and trusting nature to advance successive instalments for the total loan of Rs. 24 lacs spread over a period of several months does not certainly inspire sufficient confidence to justify a decree without trial. ( 18 ) WHILE denying the averments in the application for leave to defend, filed by defendant No. 1 it is stated by the plaintiff that the income tax raid was not on the plaintiff but on his father and on 22. 3. 1991 and not in September, 1991 and in the writ petition challenging the said raids judgment was pronounced on 4. 11. 1991. The plaintiff has also relied upon the inconsistency in defendant No. 1 s stand and me letter said to be given by defendant No. 1 to the plaintiff. 3. 1991 and not in September, 1991 and in the writ petition challenging the said raids judgment was pronounced on 4. 11. 1991. The plaintiff has also relied upon the inconsistency in defendant No. 1 s stand and me letter said to be given by defendant No. 1 to the plaintiff. Reliance is also placed on defendant No. 1 s statement in criminal proceedings titled State v. Shyam Lal and Others which contradicts his stand and confirms receipt of only Rs. 50,000 / - as his commission for the deal of 14, Anand Lok. In so far as sale of Rs. 35 acres of land at Chatarpur was purchased by plaintiff No. 1 or his family members and the purchase was in Village Satbari. The liability of Rs. 8,08,000/ - commission is also denied on the ground that the land was purchased not by the plaintiff alone but also by other family members. The amount of money paid for sale of land to Shahnaz Rana is said to be Rs. 18. 75 lacs and not Rs. 17 lacs, as alleged and it is said that commission would have been due at 1% on 18. 75 lacs. It is further statedthai if the sum of Rs. 7 lacs was due to defendant No. 1 on account of commission he would not have made the payment of Rs. 7 lacs received from defendant No. 3, Ramesh Chand suri to the plaintiff but would have deducted/adjusted the same towards his alleged commission charges. The plaintiff has contended qua the sale of land by Shahnaz Rana that the commission for sale of lands would be 1%. If the rate of 1% suggested by plaintiff is applied to the sale price of 14, Anand Lok which was for Rs. 94 lacs, then on the plaintiff s own showing, defendant No. 1 was entitled to 1% of Rs. 94 lacs, i. e. . Rs. 94,000, - and not Rs. 50,000. 00 as contended by the plaintiff. Secondly the plaintiff has submitted that if commission was payable by plaintiff to defendant No. 1, then the repayment of rs. 7 lacs made by defendant No. 3 through defendant No. 1 would have been adjusted by defendant No. 1 towards his dues. Rs. 94,000, - and not Rs. 50,000. 00 as contended by the plaintiff. Secondly the plaintiff has submitted that if commission was payable by plaintiff to defendant No. 1, then the repayment of rs. 7 lacs made by defendant No. 3 through defendant No. 1 would have been adjusted by defendant No. 1 towards his dues. This clearly loses sight of the fact that the payment to plaintiff by defendant No. 3 was made by a cheque dated 22/1/1992drawn in favour of the plaintiff and defendant No. 1 could not have appropriated this sum. ( 19 ) THE learned Single Judge in Para 37 of the impugned order dated 14th of august, 1995 held as follows: "after considering the totality of the facts, I had been reflecting over the relief to be granted. The more I thought about it my conviction became firmer that I should dismiss all the applications filed by the defendants 1 to 3. Is there anything stated by the defendants, worthy of even prima facie consideration, the answer is emphatic no. The defence pleaded by the defendant is frivolous/unrealistic and not worthy of any credence. In my view, the facts disclosed by the defendants do not indicate that they have a substantial defence and that defence intended to be projected is wholly vexatious. "in our view the observations and findings in the above para are totally unsustainable as discussed in the foregoing paragraph and the finding of the learned Single Judge that the defence set up by the defendants is frivolous, unrealistic and not worthy of any credence is wholly unjustified. ( 20 ) IN Paras 38 and 40 of the impugned order the learned Single Judge has held. as under: "38. Learned Counsel for defendants 2 and 3 argued that the acknowledgement dated 21. 9. 1991 is not binding on them. The scope of acknowledgement has been considered by the Supreme Court in Shapoor Freedom Mazda v. Durga Prosad chaamaria and Others, AIR 1961 SC 1236 . The Supreme Court had laid down that the statement on which a plea of acknowledgement is based must relate to a person having subsisting liability though the exact nature or specific character of the said liability may not be indicated in words. The Supreme Court had laid down that the statement on which a plea of acknowledgement is based must relate to a person having subsisting liability though the exact nature or specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties, such as that of debtor and creditor and it must appear that the statement is made with the intention to attempt such jural relationship. Such intention can be inferred by implication from the nature of the admission and need not be expressed in words. If the statement is fairly clear then the intention should attempt jural relationship may be implied from it. 40. From the pleadings it is clear in this case, defendants 2 and 3 have admitted the vital role played by first defendant and they had also admitted in unmistakable term the receipt of money from the first defendant and they had never questioned his action. Therefore, defendants 2 and 3 on the facts and circumstances of this case are bound by the acknowledgement. "the judgment of Supreme Court in Shapoor Freedom Mazda s case (supra) does not deal with the liability of those who have not given an acknowledgement. The judgment of the supreme Court merely lays down that an acknowledgement must admit the existence of jural relationship between the parties on an admission implied from it. We are unable to appreciate how the above judgment can be of any assistance in fastening liability on defendants 2 and 3, who had not issued any acknowledgement in writing. In our view the learned Single Judge in relying upon the aforesaid judgment of the Hon ble Supreme court in Shapoor Freedom Mazda s case (supra) has committed an error of law to cast a liability on a party not giving the acknowledgement. Secondly, in observing that defendant Nos. 2 and 3/appellants herein had admitted the receipt of the money from the defendant No. 1/appellant me learned Single Judge committed a clear error of record. There is no admission in the application for leave to defend as sought to be deduced by the learned Single Judge. Defendant No. 2 has clearly stated that the said amount was forfeited on account of oral agreement dated 2/05/1989. This cannot be said to be a admission as found by the learned Single Judge. There is no admission in the application for leave to defend as sought to be deduced by the learned Single Judge. Defendant No. 2 has clearly stated that the said amount was forfeited on account of oral agreement dated 2/05/1989. This cannot be said to be a admission as found by the learned Single Judge. In fact defendant No. 2 had clearly stated that he had never obtained any loan from the plaintiff, as alleged. Similarly defendant No. 3 had also clearly stated that a sum of Rs. seven lacs was given as token money to purchase 20 acres of land belonging to defendant No. 3 for a total consideration of rupees seven lacs. Hence the application for leave to defend does not disclose the kind of admission which the learned Single Judge appears to have found. Accordingly the order of learned Single Judge clearly demonstrates an error apparent on the face of the record. Furthermore the law in respect of grant of leave to defend is well settled in M/s. Mechalec Engineers and Manufacturers v. M/s. Bask Equipment corporation, AIR 1977 SC 577 , wherein in Para 8 it has been held as under : "in Smt. Kiranmoyee Dassi v. Dr. J. Cliatterjee, AIR 1949 Cal. 479, Das, J. , after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17, Civil Procedure Code in the form of the following propositions : (a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave tosign Judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. . . . . . . "in our view the case clearly falls within category (a), if not under category (b) of the aforesaid judgment, in view of the foregoing observations recorded by us. ( 1 ) LEARNED Counsel for the plaintiff/respondent submitted that there was no denial of the averments that defendant No. 1/appellant was a Director of defendant No. 2 and was authorised to take loan on behalf of defendant No. 2. He submitted that consequently defendant No. 1 must be deemed to be an authorised agent of defendant no. 2 and was bound by the actions of defendant No. 1. In our view this plea cannot be sustained in a summary procedure suit. Trial is requisite before the correctness of the plea as to defendant No. 1 being deemed to be an authorised agent of defendant No. 2 and was bound by the actions of defendant No. 1. In our view this plea cannot be sustained in a summary procedure suit. Trial is requisite before the correctness of the plea as to defendant No. 1 being deemed to be an authorised agent of defendant No. 2 and was bound by the actions of defendant No. 1. In our view this plea cannot be sustained in a summary procedure suit. Trial is requisite before the correctness of the plea as to defendant No. 1 being deemed to be an authorised agent of defendant No. 2 can be determined, even proceeding on the assumption mat these averments stated by the plaintiff/respondent were not denied. Defendant No. 2 has given his own version of the sum of Rs. 14 lacs being earnest money which stood forfeited. The rival versions can only be tested after evidence is led. Learned Counsel for the plaintiff also submitted that the acknowledgement dated 21. 9. 1991 constitutes an express agreement/promise to pay me amount acknowledged by defendant No. 1 for the loan amount for and on behalf of all the three defendants. It is not possible to place at this stage total reliance on me document dated 21. 9. 1991 in view of the nature and manner of doubts about the document which prima facie do not inspire sufficient confidence in its veracity so as to decline leave to defend. Consequently the authorities cited by the learned Counsel for the plaintiff/respondent which held that unconditional acknowledgement implies a promise to pay are not required to be considered at this stage. In this view of the matter, the plea of the plaintiff that the acknowledgement dated 21. 9. 1991 constitutes a written contract under Order 37. . Civil Procedure Code cannot also be determined without first determining the authenticity of the acknowledgement dated 21. 9. 1991. It was further submitted by the learned Counsel for the appellant that it is well settled law that agency may be express or of the veracity of the plea as to the fraudulent nature of the acknowledgement as determined at this stage. Learned Counsel also relied upon judgment of the Supreme court reported as Svenska Handelsbanken v. Indian Charge Chrome, (1994) 1 SCC 502 , to contend that Section 92 proviso 1 of Evidence Act, 1872 excludes oral evidence of a transaction where the written authenticity of the acknowledgement dated 21. 9. 1991 is determined. Applicability of the aforesaid judgment would be premature at this stage. 9. 1991 is determined. Applicability of the aforesaid judgment would be premature at this stage. The plea of defendant No. 2 that me agreement was to sell 2. 5 acres of land for Rs. 2. 5 crores is said to be false as no permission was sought under Section 269 (uc) of the Income- tax Act, 1961. It is also submitted that no agreement for sale of an immoveable property for more than Rs. 10 lacs could be oral and had to be in writing and it is submitted that an oral agreement could not be given effect to by the Court by virtue of the Section 120 of the Contract Act. This plea deserves consideration only after evidence is led. Furthermore the fact that oral agreements are entered into is a fairly common phenomena and whether or not such an agreement is legal and binding is not an issue which could rule out the existence or justiciability of such an oral agreement. Consequently such a plea cannot be entertained at the stage in a summary suit. Learned Counsel for the plaintiff/respondent has also termed the defence of defendant No. 3 to be artificial and unbelievable inter alia for the reason thai no details and particulars for the transactions of 30 acres of land have been given. Even assuming that this is so it is the plaintiff who is seeking to enforce repayment of interest @ 36% on the sum of Rs. 7 lacs, which was admittedly returned to him. The plaintiff has not even averred in the plaint that there was an agreement with defendant No. 3 for payment of 36% on the said sum of Rs. 7 lacs which was kept with defendant No. 3 for some time. Learned Counsel had not submitted any justification for the conclusion of the learned Single Judge that the amount of Rs. 7 lacs paid back to defendant No. 3 was adjusted towards interest calculated at the rate of 36%. In our view such interest @ 36% not having been averred against defendant No. 3 in the plaint, the findings of the learned Single Judge that it was only 36% interest which was sought to be partly paid by the defendant No. 3 by repaying @ Rs. In our view such interest @ 36% not having been averred against defendant No. 3 in the plaint, the findings of the learned Single Judge that it was only 36% interest which was sought to be partly paid by the defendant No. 3 by repaying @ Rs. 7 lacs to the plaintiff is totally erroneous and wholly unsustainable particularly when there is not a single document in writing as far as defendant No. 3 is concerned. ( 22 ) THE learned Single Judge has concluded as under: ". . . . . . The first defendant had given his address in the Memo of Appearance different from what was given by the plaintiff. Therefore, he managed to get the fresh summons issued to him. Therefore, defendant Nos. 12, and 3 were aware of the case in June, 1994 itself because the first defendant was the one for all the defendants adopting a Gilbertian process. "the above conclusion of the learned Single Judge is not justified at all as it cannot be presumed that the first defendant s service imbued the 2nd and 3rd defendants with. the awareness of the case in June, 1994 itself. Such a finding which leads to a decree without trial is wholly hypothetical and totally devoid of any substance. Besides it is not clear what the learned Single Judge has described as a "gilbertian Process". As per the webster s Dictionary (Unabridged) (Encyclopaedic Edition) the word gilbertian is defined as of, like or characteristic of his (William Gilbert) style of humour. The user of the said word gilbertian to describe the defendants stance is thus inexplicable and thus of no relevance whatsoever. ( 23 ) THE plaintiff/respondent raised a preliminary objection that the appeal, filed by the appellant/defendant No. 1 is not competent under Order 41 Rule 1, Civil Procedure Code as it has not been filed along with certified copy of the decree passed in judgment dated 1 4/08/1995. On an objection of me Registry that the appeal without certified copy was notmaintainable FAO (OS) No. l6/95 originally filed by defendant No. 1/ appellant was returned on 7th of October, 1995. On accepting the objections of the Registry, the appeal was registered after corrections and refiled as RFA (OS) No. 16/95 and was registered as RFA (OS) 16/95 which came up for bearing on 14/11/1995. On accepting the objections of the Registry, the appeal was registered after corrections and refiled as RFA (OS) No. 16/95 and was registered as RFA (OS) 16/95 which came up for bearing on 14/11/1995. ( 24 ) WHILE denying the averments of the plaintiff/respondent that the appeal was not maintainable, the defendant No. 1/appellant filed CM 2083/95. In the said application, the following averments were made: (A) that against the impugned order dated 14. 8. 1995 which declined all the defendants leave to defend and decreed the suit, FAO (OS) 747/95 was filed on 30/09/1995 and the Registry raised an objection about the maintainability of the FAO (OS) and in respect of this objection raised by the Registry, Advocate for the appellant by mistake maintained that it was an RFA (OS) though what was filed was actually FAO (OS); (b) that there were certain objections and finally on complying the orders of the registry, Deputy Registrar on 13. 11. 1995 directed that the matter be registered as RFA (OS ). On 14. 11. 1995 it was stated that the appeal was filed only against the order refusing the leave to defend though erroneously it was mentioned that RFA (OS) had been filed. This was said to be clear from the fact that only Rs. 6 has been paid towards Court fee; and (c) that direction of the Deputy Registrar to register RFA (OS) is a mistake and mentioning of RFA (OS) is a bona fide mistake on the part of the Advocate for the appellant. Consequently it was prayed in IA 2083/95 as follows: " (A) to treat me appeal only as F. A. O. (OS) against the order dated 14. 8. 1995 of the learned Single Judge, refusing permission for leave to defend; (b) to set aside the order dated 14. 8. 1995 in IA 7843/94 in OS No. 747/93; (c) to permit the appellant to amend the petition so as to "set-aside" the judgment dated 14. 8. 1995 instead of setting-aside the judgment and decree dated 14. 8. 1995; (d) to permit the appellant to amend the appeal memo by deleting the expression "decree" in paragraph 9 of the memorandum as page 6and also granting decree against the appellant till the date of realisation . "this application has been opposed by the plaintiff. 8. 1995 instead of setting-aside the judgment and decree dated 14. 8. 1995; (d) to permit the appellant to amend the appeal memo by deleting the expression "decree" in paragraph 9 of the memorandum as page 6and also granting decree against the appellant till the date of realisation . "this application has been opposed by the plaintiff. It is submitted by the plaintiff/ respondent that there was no separate order declining leave to defend and the judgment was a composite one leading to a decree in favour of the plaintiff/respondent. It is also submitted that FAO (OS), filed by defendant No. 1/appellant initially was not maintainable and against the said decree only an RFA, i. e. , Regular First Appeal was maintainable. The averment that the appeal was filed an RFA (OS) by mistake is denied and it is submitted that it was correctly filed as RFA (OS) because Advocate for the appellant had made a mistake in filing FAO (OS), The averment of the Advocate for the appellant that he had committed a bona fide mistake has also been denied and it is further stated that the certified copy of the decree has not been filed alongwith the Memorandum of Appeal and on an objection being raised by the respondent/plaintiff on this ground an application, seeking exemption from filing the certified copy of the decree sheet dated 14. 8. 1995 was filed. Even though the application for obtaining certified copy was also filed on the same day, i. e. , 14th of November, 1995. The present application has only been filed to get over the defect of the non-filing of the certified copy of the decree so as to plead that by a mistake FAO (OS) was converted to RFA (OS) even though the appeal was filed only against the order declining grant of leave to defend. ( 25 ) CONSIDERING the rival submissions of the parties, we are satisfied that the ground given by the learned Counsel for the appellant in wrongly treating the appeal as RFA (OS) was a bom fide mistake on the part of the Advocate and the earlier filing of the FAO (OS) against the judgment of the learned Single Judge was the correct course adopted by the appellant. Accordingly, we are of the view that this application deserves to be allowed and is thus allowed. Accordingly, we are of the view that this application deserves to be allowed and is thus allowed. Accordingly, this appeal will be treated only FAO (OS) against the impugned order dated 14th of August, 1995 and the Memo of Appeal in so far as it prays to set aside the decree dated 14. 8. 1995 shall stand deleted accordingly. In so far as the application for condonation of delay filed by the defendant No. 2, M/s. Rockland Pvt. Ltd. , is concerned, it is averred that one of the Directors of the company was out of Delhi from 25/07/1994 to 24/08/1994 and upon his arrival the present application for leave to defend was prepared and filed on 25/08/1994. This- explanation was characterised by the learned Single Judge as being wholly concocted, not being bom fide and not constituting sufficient cause. The learned Counsel for the plaintiff has, however, submitted that this explanation did not explain delay of 55 days and deserved to be rejected particularly when it was not stated as to who the other Directors of the Company were and why they were unable to file the appeal. We are of the view that the explanation given by the appellant for the delay is justified and deserves to be condoned. The learned Single Judge was not right in rejecting the aforesaid explanation which in our view constituted sufficient cause warranting condonation of delay. ( 26 ) THE plaintiff may eventually prove what prima facie and at this stage appearso be an improbable case, but it must only be after evidence is led and trial takes place. In Para 4 of its reply to the application for leave to defend, the plaintiff has stated that defendant No. 2 is bound by the acknowledgement and confirmation made by defendant no. 1 for the loan taken by defendant No. 1 as per the writing dated 21. 9. 1991 given by defendant No. 1 particularly when defendant No. 2 enjoyed the loan. In our view defendant No. 2 cannot be liable for the acknowledgement given by defendant No. 1 with outtrial. The connection between defendant No. 1 and defendant No. 2 has not been established to the required extent so as to bound defendantno. 2 for an acknowledgement by defendant No. 2 and mis can only be done, if at all, only after evidence is led. The connection between defendant No. 1 and defendant No. 2 has not been established to the required extent so as to bound defendantno. 2 for an acknowledgement by defendant No. 2 and mis can only be done, if at all, only after evidence is led. Thus even defendant No. 2 is entitled to grant of leave to defend. We are of the view that the defendant No. 1-Vinod Kumar Gupta should also be granted leave to defend as the plaint itself inexorably links the role of the three defendants. However, in view of the defendant No, 1 s acknowledgement in writing on 21. 9. 1991 of having received Rs. 3 1acs in his own name, we are of the view he should be granted leave to defend upon deposit in this Court of a sum of Rs. 3 lacs which should be deposited within 6 weeks from today and then invested in a short term fixed deposit in the name of the Registrar of this Court in a Nationalized Bank subject to the result of the suit. ( 27 ) IN view of the above, the appeals are allowed with costs throughout. The impugned order dated 14th of August, 1995 is set aside. Appellants applications seeking leave to defend are allowed. Unconditional leave to defend is allowed to defendants 2 and 3 and leave to defend is accorded to defendant No. 1 subject to deposit of Rs. 3 lacs, as aforementioned. Consequently the defendants/appellants herein shall file their respective written statements within six weeks from today. Replications, if any, will be filed within four weeks thereafter. Suit will thereafter proceed on its merits in accordance with law. ( 28 ) PARTIES are directed to appear before the learned Single Judge on 12/12/2001. ( 29 ) NEEDLESS to add that the observations, made by us were meant only for disposing of the appeals and will not affect the merits of the case of the parties and the suit will be decided on its own merits uninfluenced by the observations made by us.