JUDGMENT ASHIM KUMAR BANERJEE, J: The respondent in the appeal were members of a Joint Hindu Family, inter alia, known as Khaitan Family. They were also controlling various closely held companies registered under the provisions of the Companies Act, 1956. Disputes and differences arose between the Khaitans. To resolve the dispute amongst themselves they approached Mr. Madan Lal Periwal, the appellant no. 1 abovenamed, a common friend and well-wisher to the said family. Memorandum of Understanding was executed by and between the parties. It was agreed that Shri Periwal in consultation with one Mr. Govind Kanoria would resolve the disputes between the Khaitans. The Khaitans were divided in four groups as would appear from the said Memorandum of Understanding appearing at pages 32-33 of the Paper Book. Accordingly Shri Periwal started to resolve the disputes between the parties. As a process of mediation the groups sold their shares in two companies namely Salimbong Tea Company Limited and Seeyok Tea Company Limited and deposited the sale proceeds with M/s Hazarmal Laxminarayan, a partnership firm under the control and management of Shri Pariwal. It was agreed by and between the parties that upon resolution of the disputes the amount deposited by the parties would be disbursed according to the settlement. The parties also agreed that the said deposit would be utilised by the said partnership firm and the firm would pay interest @15% per annum on the said deposits. Accordingly the shares were sold and the parties deposited their sale proceeds with the appellant no. 2. It is the case of the respondent/plaintiffs that Periwal disbursed the said amount partly through the said firm. The firm also paid interest @12% per annum (the rate of interest was subsequently reduced by consent) Income-tax was also deducted at source while paying the interest. After taking into account the sums already disbursed and interest already paid a sum of Rs. 56,12,250.00 still remained due and payable by Periwals and/or his partnership firm which Periwal and/or the said firm and/or its partners failed and neglected to pay despite demand. The respondent/ plaintiffs filed a suit in this court being C.S.No. 243 of 2003. Periwals entered appearance after receipt of the writ of summons. The respondents/ plaintiffs then took out a master summons, inter alia, praying for a summery judgment as against Periwals. The respondent/ plaintiffs filed a suit in this court being C.S.No. 243 of 2003. Periwals entered appearance after receipt of the writ of summons. The respondents/ plaintiffs then took out a master summons, inter alia, praying for a summery judgment as against Periwals. Pertinent to note, the other groups of Khaitan family being the proforma-defendants in the said suit and the respondents no. 9 to 21 herein did not enter appearance. The appellants contended before us that writ of summons were yet to be served upon them. 2. Periwals contested the said application by filing affidavit-in-opposition. In the said affidavit they contended that the amount disclosed by the Khaitans/plaintiffs did not reveal the exact amount outstanding. According to Periwals a sum of Rs. 87.00 lacs was deposited by the plaintiff group whereas a sum of Rs. 5338683.00, Rs. 1325000.00 and Rs. 418491.00 were paid respectively in the years 1996, 1999 and 2000. The learned Judge on perusal of the pleadings came to a finding that on the own showing of the Periwals sum of Rs. 16,17,826.00 still remained due and payable to the Khaitans/Plaintiffs. 3. The claim was resisted by Periwals, inter alia, on the ground that disputes were not fully resolved as jewelleries were yet to be distributed. In any event until and unless the other group appeared in the suit and consented refund of the sums payable to the Khaitans/Plaintiff the amount could not be said to be payable by the Khaitans/Plaintiffs. It was also contended that Khaitans/Plaintiffs disturbed status quo to the detriment of the other group and refused to restore the status quo despite direction given by the mediator. It was also contended that as per the arrangement the amount was shown to have been deposited as a loan transaction without being liable for payment of interest till the dispute was resolved. The amount was in fact being held by Periwal in an Escrow Account and could not be refunded without the consent of the other group. 4. The learned single Judge rejected the contention of Periwals and held that since the appellant no. 1 was entrusted with the job of resolution of disputes through mediation and since the money was kept in deposit with him he was not entitled to retain the same despite demand from the Khaitans/Plaintiffs. His Lordship held that the money was deposited in Escrow Account. 1 was entrusted with the job of resolution of disputes through mediation and since the money was kept in deposit with him he was not entitled to retain the same despite demand from the Khaitans/Plaintiffs. His Lordship held that the money was deposited in Escrow Account. Hence, the Escrow Account holder could not have any interest in the deposit. The learned Judge ultimately passed a final judgment and decree in favour of the plaintiffs for sum of Rs. 16,17,826.00. His Lordship, however, permitted Periwals to defend the suit for the balance sum of Rs. 39,94,424.00 on condition that they would deposit the said amount of Rs. 39,94,424.00 with the Registrar, Original Side, High Court. His Lordship also observed that in default of furnishing of such cash security within four weeks from the date of the judgment Periwals would suffer a decree for the entire sum of Rs. 56,12,250.00 together with interest @12% per annum on and from April 1, 2002 until payment. Hence, this appeal by Periwals. 5. At the initial stage the appellants prayed for stay of operation of the judgment and decree. They, however, could not deposit any sum to show their bonafide. We, thus, admitted the appeal without granting any stay. When the appeal came up for hearing before us after going through the pleadings to test the bonafide of Periwals we asked them to file affidavits disclosing their assets. On that score adjournments were given from time to time by us to have proper affidavit affirmed by each one of the appellants truly disclosing their assets. Ultimately appropriate affidavits were filed. On perusal of the affidavits we find that the appellants have approximately 1/4th share in an undivided property at 12E, Judges’ Court Road, Calcutta where the appellants were residing. By the said affidavits they undertook not to dispose of their respective shares in the said property without leave of this Court. The family also disclosed an immovable property situated in Tinsukia, Assam. The family also disclosed a valuation report of the said immovable property valued at Rs.82.00 lacs. The family through appellant no. 1 undertook not to sell or dispose of or alienate the family property/firm property at Tinsukia, Assam or any other property belonging to the family member and/or any one of them or the firm without express leave being obtained from this Court. The family through appellant no. 1 undertook not to sell or dispose of or alienate the family property/firm property at Tinsukia, Assam or any other property belonging to the family member and/or any one of them or the firm without express leave being obtained from this Court. After filing of those affidavits we proceeded to hear the appeal on merits. 6. Mr. P.K. Das, learned senior counsel appearing for the appellants, raised as many as twenty-three triable issues which according to him might arise in case the suit was relegated for a regular trial. On perusal of the triable issues so submitted by Mr. Das we find that the principal contention of the appellants was that the amount as per the arrangement was to be utilised in the family business repayable with interest on resolution of the entire dispute. Since the dispute was not fully resolved the plaintiff group was not entitled to ask for refund. Mr. Das also raised a legal issue to the effect that the suit was bad misjoinder of cause of action as well as misjoinder of parties. According to him each one of the plaintiffs had an independent claim which could not be joined in a composite suit. He also contended that the plaintiffs namely Vishal Khaitan and Vimal Securities Limited being the plaintiffs no. 5 and 7 were not parties to the Memorandum of Understanding. Their claims were independent of the Memorandum of Understanding. Hence, the said plaintiffs were not entitled to join in one composite suit on the strength of Memorandum of Understanding. Mr. Das further contended that even if the money was held by the appellants in an Escrow Account it could not be disbursed without the consent of all the parties to the agreement. He lastly contended that the facts so came out in the pleadings would depict that there were disputed questions of fact which could only be resolved in a regular trial. On the issue of conditional leave to defend Mr. Das contended that once he was able to show that there were disputed questions of fact that should be resolved at a regular trial he was entitled to unconditional leave to defend. 7. In support of his contentions Mr. Das relied on the following decisions:- (i) All India Reporter, 1926, Calcutta, Page 713 (Radha Kissen Goenka Vs. Das contended that once he was able to show that there were disputed questions of fact that should be resolved at a regular trial he was entitled to unconditional leave to defend. 7. In support of his contentions Mr. Das relied on the following decisions:- (i) All India Reporter, 1926, Calcutta, Page 713 (Radha Kissen Goenka Vs. Thakursidas Khemka) (ii) All India Reporter, 1952, Calcutta, Page 222 (The Corporation of Calcutta Vs. Radhakrishna Dev & Ors.) (iii) All India Reporter, 1953, Calcutta, Page 185 (Sm. Nagendra Bala Debi & Ors. Vs. Provash Chandra & Ors.) (iv) All India Reporter, 1968, Calcutta, Page 567 (Tarini Gupta Chowdhury Vs. Sm. Gouri Gupta Chowdhury) (v) 1976 Volume – IV, Supreme Court Cases, Page 687 (M/s Mechelec Engineers & Manufactures Vs. M/s Basic Equipment Corporation) (vi) All India Reporter, 2002, Supreme Court, Page 1993 (State Bank of Saurashtra Vs. M/s Ashit Shipping Services (P) Ltd. & Anr.) (vii) 2005, Volume – II, Calcutta Law Times, Page – 488 (Rajani Kanta Burman Vs. Union of India) (viii) 2006, Volume – VIII, Supreme Court Cases, Page 25 (Defiance Knitting Industries (P) Ltd. Vs. Jay Arts) (ix) 2007, Volume-II, Supreme Court Cases, Page 551 (Prem Lata Nahata & Anr. Vs. Chandi Prasad Sikaria) 8. Mr. Asish Chakraborty, learned counsel led by Mr. Pratap Chatterjee, learned senior counsel, while opposing the appeal on behalf of the respondents/ plaintiffs contended that once the learned Judge exercised his discretion granting conditional leave to defend the court of appeal was not competent to substitute their view exercising discretion in another way. In support of such contention Mr. Chakraborty relied on two decisions in the case of Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Bros., Delhi reported in All India Reporter, 1967, Supreme Court, Page 249 and in the case of Sen Mukherjee & Co. Vs. Smt. Chhaya Banerjee reported in All India Reporter, 1998, Calcutta, Page 252. 9. Mr. Chakraborty also contended that earlier the learned single Judge while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure held that the suit was maintainable and as such, such decision of the learned single Judge attained finality on being affirmed by the Division Bench. The appellant were thus not entitled to reopen the issue of maintainability. In support of his contention Mr. Chakraborty relied on the Apex Court decision in the case of Satyadhyan Ghosal & Ors. The appellant were thus not entitled to reopen the issue of maintainability. In support of his contention Mr. Chakraborty relied on the Apex Court decision in the case of Satyadhyan Ghosal & Ors. Vs. Smt. Deorajin Debi & Anr. reported in All India Reporter, 1960, Supreme Court, Page 941. 10. On the issue of multiferiousness Mr. Chakraborty drew our attention to paragraph 6 of the affidavit-in-opposition filed by the appellants before the learned Single Judge. He contended that money was deposited after sale of shares as per the Memorandum of Understanding. Hence, refund of such sale proceeds originated from the Memorandum of Understanding. Hence the plaintiffs were entitled to join in a composite suit asking for refund of the sums so deposited with the appellants. 11. Leave to defend in a suit is dependant upon the factual matrix involved therein. The Court has a discretion whether such leave to defend would be given considering the facts and circumstances of the case and if so whether such leave should be conditional or not. In the case of Smt. Kiranmoyee Dassi Vs. Dr. J. Chatterjee reported in 49, Calcutta Weekly Notes, Page 246 the learned Single Judge of this Court prescribed a guideline to be followed while considering the prayer for leave to defend a suit. Such guideline was reiterated by the Apex Court in the case of M/s Mechelec Engineers & Manufacturers (Supra). The guidelines are as follows:- “(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 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 bona fide 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 bona fide 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. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.” 12. Such guideline is still considered to be well settled principle. Let us now examine whether the learned Judge followed such guideline in its true spirit or not. 13. The respondents/plaintiffs as well as proforma respondents agreed to resolve their disputes inter se through an alternate dispute resolution by way of mediation and/or conciliation through their common friend being the appellant no. 1 with the help of one Shri Govindji Kanoria who subsequently died. The mediator directed the parties to sell their respective shares in the family company namely Sellingbong Tea Company Limited and Seeyok Tea Company Limited. He also directed deposit of the said sums with him that would be held by him till the disputes were finally resolved. 1 with the help of one Shri Govindji Kanoria who subsequently died. The mediator directed the parties to sell their respective shares in the family company namely Sellingbong Tea Company Limited and Seeyok Tea Company Limited. He also directed deposit of the said sums with him that would be held by him till the disputes were finally resolved. Had the money been held by him in Escrow Account simpliciter he would not have any interest on the said sum and was liable to refund the same to the lawful claimants on demand or contemplated eventuality. The parties, however, agreed that the money be utilised by the partnership firm under the control of the appellant no. 1 and earned interest thereon. Once the parties agreed to invest the said sum in business of the appellants such deposit could not be called per se an amount held in Escrow Account simpliciter. From the pleadings it appears that appellants not only disbursed amounts to a substantial extent but also paid interest and furnished appropriate TDS Certificate there for. Hence, there might be some triable issue which requires adjudication at the final trial. On perusal of the pleadings it appears that initially the parties agreed to lend such sum @ 15% per annum which was subsequently reduced to 12% per annum. The respondents/ plaintiffs, however, contended before us that there could be no dispute in view of the acknowledgement of liability duly signed by the appellants and annexed to the pleadings. In our view, those acknowledgements might have weakened the case of the appellants that they might bring through their written statement. On a sum total, however, it would not be wise to sign the judgment without granting opportunity to the appellants to contest the suit. It was also contended that in absence of the proforma respondents the appellants were not obliged to disburse the entire sum as it would not give them valid discharge. We cannot brush aside such defence by calling it “moonshine” or “sham”. The learned single Judge considered all these aspects and ultimately granted leave to defend the claim made in the suit except the sum of Rs. 16,17,826.00. According to the appellants, the appellant no. 1 disbursed a sum of Rs. 70,82,174.00 leaving a balance sum of Rs. 16,17,826.00. The learned single Judge passed a decree for the said amount of Rs. 16,17,826.00. 16,17,826.00. According to the appellants, the appellant no. 1 disbursed a sum of Rs. 70,82,174.00 leaving a balance sum of Rs. 16,17,826.00. The learned single Judge passed a decree for the said amount of Rs. 16,17,826.00. We do not find any scope of interference on that score. 14. The learned single Judge after consideration of the probable issues which are likely to arise in the suit gave conditional leave to defend by asking them to deposit the balance amount of claim. It is true that the learned Judge observed that there was no defence that the defendants could indicate. Even then the learned Judge granted them an opportunity to contest the suit. The respondents/ plaintiffs accepted the said decision. They, however contended that since the appellants could not deposit the sum as directed by His Lordship by virtue of default they became entitled to the entire amount. 15. We view this problem from a particular angle. The learned single Judge ultimately passed a part decree for Rs. 16,17,826.00. We have already expressed our view on that score. The appellants in their affidavits filed before us prayed for instalment to pay of the said amount. Granting of instalment is complete discretion of the court. The appellants raised various pleas before His Lordship. They were unsuccessful to the extent of Rs. 16,17,826.00. They now pray for easy instalments. We wish to grant them opportunity to pay of the said dues in a phased manner. 16. Let us now consider the issue of conditional leave to defend the balance amount of claim. As we have observed earlier, learned single Judge ultimately granted conditional leave to defend. His Lordship directed cash security to be furnished for the balance amount. The parties, keeping their eyes wide open, agreed to have utilisation of the said sum by way of commercial exploitation. Once the amounts were invested in a business it would not be wise to ask the appellants being the defendants in the said suit to block their capital by making deposit in Court when they are agreeable to give adequate security in lieu of cash security. 17. We thus feel that we are not so powerless being the Court of Appeal to modify the order of the learned single Judge by changing the nature of security for the balance claim was Rs. 39,94,424.00. 17. We thus feel that we are not so powerless being the Court of Appeal to modify the order of the learned single Judge by changing the nature of security for the balance claim was Rs. 39,94,424.00. The appellants are ready and willing to offer their shares in their dwelling house situated at 12E, Judges’ Court Road, Calcutta. The appellants together hold approximately 1/4th share in the said premises in question as contended by Mr. Das in course of hearing. The appellants also expressed their willingness to keep the sole undertaking of the partnership firm being the immovable property situated at Tinsukia, Assam more fully described in the affidavit affirmed on July 19, 2008. On perusal of the valuation report it appears that as per the valuer the value of the said immovable property was Rs. 82.00 lacs as on June 10, 2008. We feel, this would be adequate to secure the balance claim of the respondents/ plaintiffs. 18. The appeal thus succeeds in part. The appellants are granted liberty to pay of Rs. 16,17,826.00 to the respondents/plaintiffs in the following manner:- (i) A sum of Rs. 1,17,826.00 be paid by October 4, 2008. (ii) The balance sum of Rs. 15.00 lacs be paid by 15 equal monthly instalment commencing from November 4, 2008 and thereafter on the 4th day of the succeeding month until the entire amount is paid of. (iii) The appellants would also be obliged to pay interest @12% per annum on the said sum of Rs. 16,17,826.00 on and from April 1, 2002 until the entire amount is paid. (iv) The entire interest would be calculated on reducing balance and be paid in one go as and by way of 17th instalment payable on the 4th day of the succeeding month after payment of the last instalment in terms of (iii) above. (v) In case of default of payment of any one instalment as directed above this order would stand revoked and the appeal would stand dismissed. In that event the respondents/ plaintiffs would be entitled to put the decree passed by the learned single Judge into execution. (vi) In case instalments are paid along with interest as directed above the appellants would be entitled to defend the suit. 20. In that event the respondents/ plaintiffs would be entitled to put the decree passed by the learned single Judge into execution. (vi) In case instalments are paid along with interest as directed above the appellants would be entitled to defend the suit. 20. The appellants and each of them and/or their servants and/or agents are restrained by an order of injunction from dealing with or disposing of in any manner whatsoever, their shares in respect of the 12E, Judges’ Court Road, Calcutta as well as the immovable property at Tinsukia, Assam more fully described in the affidavit affirmed on July 19, 2008 by the Appellant no. 1. 21. The shares of the parties in respect of the aforesaid two immovable properties would remain charged for payment of the decreetal amount, if any to be passed by this Court at the time of final hearing of the suit. 22. The written statement be filed by the appellants within four weeks after long vacation, if not filed earlier. Cross order for discovery within four weeks thereafter. Inspection forthwith. The parties would be at liberty to approach the appropriate Bench for final hearing of the suit thereafter. 23. It is, however, made clear that our observations in this judgment touching the merits of the matter are based on prima facie view and must not influence the learned Single Judge in case the parties go to trial in terms of this order. 24. The appeal is, thus, disposed of without any order as to costs. 25. Urgent xerox certified copy would be given to the parties, if applied for. Tapas Kumar Giri, J.: I agree. Appeal disposed of.