D. K. SETH, J. ( 1 ) THIS appeal arises out of a decision granting a decree on admission under Chapter XIII-A in this suit on August 5, 2003. The first preliminary objection that was taken with regard to the validity of the decree is based on Rule 3 proviso of Chapter XIII-A of the Original Side Rules (OS Rules ). Mr. Pal submits that unless the Master's Summons under Rule 4 of Chapter XIII-A is taken out within 10 days from the date of receipt of notice of appearance where a written statement has been filed, the application under Chapter XIII-A shall not be maintainable or permissible. According to him, the writ of summons was served on May 22, 2003 and the defendant-appellant had entered appearance and served notice on May 25, 2003 whereas Master's Summons was taken out on June 11, 2003 and the written statement was filed on July 28, 2003. ( 2 ) MR. Pratap Chatterjee ably assisted by Mr. Banerjee points out that where a written statement is filed after the Master's Summons is taken out the filing of the written statement cannot have the effect of making the application which was otherwise valid on the date of filing, infructuous. The principal rule does not provide for any time limit. The proviso qualifying the period of 10 days as time limit, which is not provided in the principal rule for a deadline of 10 days from the date of appearance as sacrosanct. Issues of determination : ( 3 ) IN this case, we are called upon to decide two broad issues. First, whether the subsequent filing of written statement would invalidate an application under Chapter XIII-A of the Original Side Rules if the summons thereof was taken out 10 (ten) days after receipt of the notice of appearance of the defendant? Second : whether leave to defend could be denied on the face of the defence raised by the defendant. 3. 1. We would like to answer the first question first and then to proceed to decide the second issue if the first question is decided against the appellant. The First Issue: ( 4 ) BEFORE we proceed to deal with the matter further, we may refer to Rule 3 of Chapter XIII-A as quoted below : 3. When application to be made. The First Issue: ( 4 ) BEFORE we proceed to deal with the matter further, we may refer to Rule 3 of Chapter XIII-A as quoted below : 3. When application to be made. Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs : provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, Rule 18". Effect of proviso to Rule 3 Chapter XIII-A : 4. 1. The consequence of non-filing of written statement is provided in Rule 2 of Chapter IX. Mr. Pal had points out, relying on these provisions, that the written statement can be filed within the time fixed or within the time extended by Court in the manner provided therein. Therefore, filing of the written statement would have an impact, which would negative the right of the plaintiff to proceed under Chapter XIII-A in view of proviso to Rule 3. 4. 2. In order to appreciate the situation we may scan the expression used in Rule 3. The provision proceeds to prescribe that an application shall not be permissible unless the summons is taken out within 10 days of receipt of notice of entering appearance under Chapter VIII Rule 18 against a defendant who has filed a written statement. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summons is taken out within the time limit prescribed. The expression used may be interpreted in both the manner as Mr. Pal has contended as well as Mr. Chatterjee has contended. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summons is taken out within the time limit prescribed. The expression used may be interpreted in both the manner as Mr. Pal has contended as well as Mr. Chatterjee has contended. Such question had cropped up before this Court in an unreported decision by Hon'ble Sengupta, J. sitting singly in GA No. 3116 of 2001, CS No. 187 of 2001 (Calstar Steel Limited v. M/s. Deekay Coconut Oil Industries and Ors.) diposed of on July 11, 2002. In the said decision, it was held that Chapter XIII-A does not provide any time limit for taking out a Master's Summons where writ of summons has been served irrespective of the defendants entering appearance. But, from Rule 3 proviso, it appears that the 10 days limit would be applicable in a case where the written statement is filed simultaneously with the entering of appearance. Such 10 days limitation will not be applicable where the entering appearance is not simultaneously or immediately followed by the filing of the written statement and Master's Summons can be taken out in an appropriate case at any time. In order to apply for 10 days limitation, two conditions are to be fulfilled - (1) there must be a notice of entering appearance in the suit and (2) simultaneously with the entering appearance there must be filing of written statement. Anything short of either of these two things the aforesaid rigidity period of 10 days will not be applicable. 4. 3. Mr. Chatterjee has relied on this decision to bring home his contention that an application which was otherwise valid on the date when the Master's Summons was taken out cannot be rendered invalid by subsequent filing of a written statement unless it is expressly so provided for in the Rule. In the absence of any express provision, according to him, the Court cannot add words into it and make a provision extremely rigid one particularly when the question is one of procedures leading plainly to the technicalities. On the other hand, Mr. Pal has pointed out that the learned single Judge had not given any reason as to why such a conclusion was arrived at. On the other hand, Mr. Pal has pointed out that the learned single Judge had not given any reason as to why such a conclusion was arrived at. At the same time, the conclusion does not seem to be supported by the express provision used in Rule 3. 4. 4. After having gone through the provisions contained in Rule 3 of Chapter XIII-A, it appears to us that the principal Rule does not provide for any time limit for applying for final judgment. It permits making of such application when the defendant has entered appearance. The principal Rule has been qualified by the proviso. The proviso has used present perfect, future and present tense while laying down the condition under which such an application cannot be permissible viz. , (i) against a defendant who has filed a written statement, (ii) the application shall not be permissible, (iii) unless the summons is taken out within the time limit prescribed. In the manner in which the expression has been engrafted using present perfect tense for the purpose of filing written statement and making an application impermissible preceded by a future tense followed by present tense for taking out the summons presupposes that the impermissibility is applicable when it follows the filing of the written statement. If such application is made after the written statement is filed, in that event, the 10 days limitation for taking out the Master's Summons would be applicable. But, if the Master's Summon is taken out before the written statement is filed, in that event, by virtue of filing of written statement the purpose of taking out the Master's Summons cannot be frustrated simply by filing a written statement. Our view is supported by the use of the verb ?is? for taking out of the summons. The use of the present tense is for the taking out of summons is significant. If the legislature intended the effect, as Mr. Pal contends, then it would have used past tense ?was? instead of present tense ?is? for taking out summons. The question is to be gone into on merits and not on technicalities. Conclusion : First Issue: 4. 5. Therefore, we are unable to persuade ourselves to concede to the proposition advanced by Mr. Pal and read the proviso to qualify the principal Rule 3 in the manner as pointed out by him. for taking out summons. The question is to be gone into on merits and not on technicalities. Conclusion : First Issue: 4. 5. Therefore, we are unable to persuade ourselves to concede to the proposition advanced by Mr. Pal and read the proviso to qualify the principal Rule 3 in the manner as pointed out by him. We are also unable to persuade ourselves to agree fully with the reasoning given and the conclusion arrived at in the decision in Calstar Steel Limited (supra ). According to our reading, the time limit is applicable in a case where the written statement has preceded the taking out of the Master's Summons and not otherwise. The Second issue: ( 5 ) ON the question of merit, Mr. Pal has pointed out that the learned single Judge had passed the decree on the basis of the admission made by the defendant at page 237 of the Paper Book. Drawing our attention to the same, he has pointed out that there was no admission as such enabling the plaintiff to obtain a judgment on admission. He has then contended that the defence that had been taken raised a triable issue and that the defence was not altogether baseless or moonshine. 5. 1. He has led us through the various materials disclosed in the Paper Book and has drawn our attention to the fact that none of the challans or statements of accounts were signed or acknowledged by the defendant and that these challans were addressed to some other destination than the address of the defendant's address. There was no proof that these goods were sold and delivered to the defendant. The statements of accounts were not established to be linked with the goods alleged to be sold and delivered to the defendant. The defendant raised some issues, which were required to be gone into. 5. 2. Mr. Pratap Chatterjee, learned counsel for the respondent, on the other hand, has pointed out that the statements of accounts were being furnished from time to time and it had never been disputed. On the other hand, at page 237 of the Paper Book, the defendant had admitted that as on March 31, 1999, the amount due coincided with the figure mentioned therein. Thereafter, certain payments were made and those were adjusted to the account and the balances were reflected. On the other hand, at page 237 of the Paper Book, the defendant had admitted that as on March 31, 1999, the amount due coincided with the figure mentioned therein. Thereafter, certain payments were made and those were adjusted to the account and the balances were reflected. The statements of accounts had never been disputed in the affidavit used against the application for final judgment. Apart from this admission, there was no defence worth its name to defend the claim of the plaintiff. The learned single Judge had given adequate reasons to support the conclusion leading to the passing of the decree under Chapter XIII-A. Therefore, the appeal should fail. The grounds for leave to defend raised: 5. 3. We have examined the papers. The defence that had been raised with regard to the story of some understanding without actual delivery of goods might be a moonshine defence or might be a baseless one. We, however, are not supposed to go into that question at this stage. Apart from this defence in the letter at page 237, we find that the expression used does not clearly make out a case of admission as on the date when the latter was addressed. The letter was dated November 7, 2001. It was an admission with regard to its due as on March 31, 1999, which was an admission with regard to its due as on March 31, 1999 which was figured out at Rs. 27,09,828. 58. But, at the same time, it had been pointed out that after that date the business continued and payment was made more than what was purchased and, therefore, the amount should be less than Rs. 27,09,828. 58. This was followed further by the expression that the accounts could not be reconciled since the books of accounts were seized by the Central Excise and that the payments according to commitment could not be made due to closure of the factory and two cheques were also issued which, however, bounded. This might be an admission that some account was due, but there was no admission with regard to the exact amount due. Therefore, this letter contained at page 237 could not be said to be an admission to the extent on which a decree for a particular amount could be passed. Mr. Banerjee appearing with Mr. This might be an admission that some account was due, but there was no admission with regard to the exact amount due. Therefore, this letter contained at page 237 could not be said to be an admission to the extent on which a decree for a particular amount could be passed. Mr. Banerjee appearing with Mr. Pratap Chatterjee has pointed out that the decree was for a lesser amount, namely, for the principal it was around Rs. 26 lakhs and odd. According to Mr. Banerjee, whatever payment was received after this Rs. 27,09,828. 58 was admitted to be due and after adjusting the payments made, the amount remaining due was the amount on which decree had been passed. He has also pointed out that there was no dispute with regard to the statement of accounts. It was not disputed at any point of time until the written statement was filed that none of the goods were sold and delivered to him. Therefore, absence of signature on the challans was immaterial. The scope of and extent of scrutiny by Court: 5. 4. We are not supposed to go into the question whether these dues could be proved or not. We are on the question of refusal to grant leave to defend on the basis of the defence raised or, in other words, we are to find out from the materials that there was no defence for the defendant to resist the claim of the plaintiff. Admittedly, the burden lies on the plaintiff to prove his own case. Even if the suit is heard ex parte or undefended, even then the plaintiff has to prove his case. Without such proof, no decree can be obtained. Proving of case by the plaintiff cannot be dispensed with. In such a case, it has to be seen whether the defendant has raised a defence, which is baseless or practically moonshine or not or whether the defendant has been able to raise a triable issue or not. 5. 5. In the present case, it does not appear that the plaintiff had been able to show that the goods were actually sold and delivered and that there was any clear admission on the part of the defendant. 5. 5. In the present case, it does not appear that the plaintiff had been able to show that the goods were actually sold and delivered and that there was any clear admission on the part of the defendant. At the same time, apart from the case of altogether absence of the transaction, the defence that had been taken raised some issues, which were to be proved and gone into. Conclusion : Second Issue: 5. 6. Thus, it does not appear to be a case where the leave could be refused altogether. However, in the facts and circumstances of the case, we have found that the defendant had raised a triable issue. In the appeal, we have already directed furnishing of security and some security has since been furnished. In the circumstances, we grant leave to defend on condition that the security already furnished shall continue till the disposal of the suit. However, it will be open to the plaintiff to ask for additional security if the circumstances so warrant and the plaintiff is otherwise entitled to. Such decision may be taken in the suit by the learned single Judge in accordance with law having regard to the facts and circumstances of the case according to its own wisdom and discretion. Order: ( 6 ) IN the circumstances, the final judgment under Chapter XIII-A is hereby set aside. The suit is remitted to the learned single Judge for trial. The defendant has already filed his written statement. The hearing of the suit be expedited. All steps with regard to discovery, notice to produce and inspection of documents, framing of issues and other mandatory requirements be undertaken and completed by the respective parties within a period of one month from the date of receipt of the signed copy of this dictated order. 6. 1. The appeal is, thus, allowed. There will, however, be no order as to costs. Parties shall act on signed copy of the minutes of the operative portion of the Dictated Order on the usual undertaking. R. N. Sinha, J.- I agree. Appeal allowed