JUDGMENT : S.C. Dharmadhikari, J. 1. In this Appeal, the order dated 5th July, 2016, of the learned single Judge passed on the Summons for Judgment No. 60 of 2014 in Summary Suit No. 66 of 2013 is challenged by the original defendants. 2. The respondent No.1 is the original plaintiff. 3. The suit in question was filed by invoking Order XXXVII of the Code of Civil Procedure, 1908. The respondent-plaintiff urged that he is a resident of the islands of Trinidad & Tobago. The first defendant to the suit is a Private Limited Company incorporated under the Indian Companies Act, 1956, having its registered office at the address mentioned in the cause title. The original defendant Nos. 2 to 4 & 6 are the individuals & principal borrowers having their residence/respective office at the addresses mentioned in the cause title of the plaint. The original defendant No.5 is a company incorporated under the Indian Companies Act, 1956. The seventh defendant to the suit is a guarantor of the loan amount granted by the plaintiff to the defendant Nos. 1 to 6. 4. It is claimed that all the defendants are involved in the business of film production and distribution. A loan amount in the sum of US $ 5,00,000 equivalent to Rs.2,68,80,000/- on the date of filing of the Summary Suit was due and payable. 5. It is claimed that in or about December 2009, the original defendant Nos.2 and 3 met the respondent No.1-plaintiff and requested him for refundable advance in the sum of US $ 5,00,000. The loan amount was to enable the defendant No.1- company and the defendant Nos.2 and 3 to pay moneys which were due and payable by them to Reliance Big Entertainment Private Limited in respect of a movie titled “Dulha Mil Gaya”. That is how the respondent No.1-plaintiff agreed to lend the amount. An agreement dated 2nd January, 2010 was entered into between the defendant No.1-company, defendant No.5 and the plaintiff. After setting out the relevant clauses of this agreement, in paragraph 4 of the plaint it stated that pursuant to the execution of this agreement between the plaintiff and defendant Nos.1 to 5, a promissory note dated 2nd January, 2010, was executed by defendant Nos.2 to 4 and 6 in the plaintiffs favour. After setting out the relevant clauses of this agreement, in paragraph 4 of the plaint it stated that pursuant to the execution of this agreement between the plaintiff and defendant Nos.1 to 5, a promissory note dated 2nd January, 2010, was executed by defendant Nos.2 to 4 and 6 in the plaintiffs favour. Thus, the borrowers executed this promissory note and it was agreed that they would jointly and severally pay to the plaintiff, the loan amount or any shortfall thereof. Annexure-B to the plaint is a copy of the promissory note. 6. Then, an e-mail dated 3rd January, 2010, by the defendant No.7 informed the plaintiff that he would be a personal guarantor for the repayment of this loan or any shortfall thereof. A copy of this document is Annexure-C to the plaint. Then, there is a remittance from the bank which evidences that the loan amount was remitted by the first respondent. The account of defendant No.1 maintained by it at the Union Bank of India at Mumbai was credited. Thus, the loan was repayable on or before 8th April, 2010. On 6th March, 2010, the respondent No.1-plaintiff reminded the defendants that the loan amount was due and payable in full before 8th April, 2010. On 8th April, 2010, the defendants failed and/or neglected to repay this amount. Therefore, an e-mail was addressed, copy of which is at Annexure- F. The second defendant on behalf of the defendants addressed an e-mail dated 9th April, 2010, denying that the amount advanced by respondent No.1-plaintiff was a loan, but was to be treated as a refundable advance against overseas territory of the film Dulha Mil Gaya. Further, it was also stated in the said e-mail that the defendants were contemplating on sending to the plaintiff certain remedial measures after reconciling the accounts of the firm but they would do so only upon consulting their attorneys. The emails at Annexures G, H and I are relied upon in the plaint to contend that these are acknowledgements of the liability. Despite having acknowledged the liability in telephonic conversations as also in writing, this amount styled as a loan/refundable advance was not repaid. It is in these circumstances that after a legal notice, the first respondent filed the above Summary Suit in this Court on 2nd November, 2012. 7. The respondent No.1-plaintiff claimed a decree in the sum of Rs.2,68,80,000/-. Despite having acknowledged the liability in telephonic conversations as also in writing, this amount styled as a loan/refundable advance was not repaid. It is in these circumstances that after a legal notice, the first respondent filed the above Summary Suit in this Court on 2nd November, 2012. 7. The respondent No.1-plaintiff claimed a decree in the sum of Rs.2,68,80,000/-. The particulars of the claim at Annexure-AA sets out the particulars based on which the decree was claimed. 8. Once the suit was laid as a Summary Suit by invoking Order XXXVII of the Code of Civil Procedure, 1908, then, no relief not falling within the ambit of Rule 2 thereof can be claimed. With all such statutory declarations the suit being filed, the summons being served, appearance was duly entered by the defendants. 9. On the basis of this Vakalatnama or appearance and by further provisions contained in Order XXXVII, the respondent No.1-plaintiff moved a Summons for Judgment. That Summons for Judgment, was supported by an affidavit. A judgment was claimed in the above sum. On this Summons for Judgment dated 14th August, 2014, and after service of a copy thereof, an affidavit-in- reply came to be filed by Manish Nathwani, Viveck Vaswani and the first defendant. The affidavit was affirmed by Manish Nathwani. It is stated that the instant Summary Suit is based on three documents, the first of which being an agreement dated 2nd January, 2010, the second being promissory note dated 2nd January, 2010 and the third an acknowledgement of the refundable advance. None of the three documents/instruments are stamped as required by the stamp laws in the field. At the outset, none of them are even executed on stamp papers and hence the respondent No.1-plaintiff cannot seek enforcement of the same, leave alone relying upon them in any manner. Then, there are other defences raised but we are not concerned with the merits thereof. 10. There is a rejoinder affidavit and in which the first respondent-plaintiff asserted how the sum is due and payable and no technical or frivolous defences can be admitted to deny the claim. 11. On such materials, the learned Judge heard the counsel appearing for the parties and by the impugned judgment directed that the Summons for Judgment is disposed of by granting conditional leave to the defendants to deposit the amount of US $ 5,00,000 within a period of eight weeks. 11. On such materials, the learned Judge heard the counsel appearing for the parties and by the impugned judgment directed that the Summons for Judgment is disposed of by granting conditional leave to the defendants to deposit the amount of US $ 5,00,000 within a period of eight weeks. The relevant directions and which are highlighted by Mr. Chinoy, learned senior counsel appearing on behalf of the appellants, are to be found in paragraph 19 of the impugned order. They read thus :- “19. The plaintiff has tendered the original Agreement dated 2nd January 2010, the Promissory Note dated 2nd January 2010 and the Acknowledgement of Refundable Advance dated 22nd June 2010. These documents are hereby impounded. The Prothonotary and Senior Master is directed to forward these documents to the Superintendent of Stamps/Collector of Stamps, Mumbai for adjudication. Copy of the forwarding letter to be sent to the Advocate for the plaintiff and the defendants. The Superintendent of Stamps/Collector of Stamps, Mumbai is directed to adjudicate within four weeks from receiving the documents from the Prothonotary and Senior Master, High Court, Bombay. Once adjudicated, the order be communicated to the Prothonotary and Senior Master with a copy to the Advocate of the plaintiff and the defendants. The plaintiff to pay the amount of Stamp duty including penalty etc., i.e., adjudicated amount within four weeks of receiving a copy of the order. If the plaintiff is aggrieved by any such adjudication order, the plaintiff will be entitled to challenge the adjudication in accordance with Law.” 12. Mr. Chinoy would submit that the learned Judge has committed a fundamental legal error in allowing the first respondent to rely upon unstamped documents. Mr. Chinoy would submit that the first respondent-plaintiff tendered and relied on the originals of the agreement, promissory note and acknowledgement of the refundable advance. Once the suit is based on these three instruments, then, the learned Judge was obliged to find out as to whether the requisite stamp duty has been paid thereon. It is not only ensuring payment of proper stamp duty and securing of revenue, but admitting the documents in evidence and reading the contents thereof which is material for our purpose. It is no argument, according to Mr. Chinoy, that the defences raised are technical and, therefore, no benefit can be derived from the same by the parties like the appellants-original defendants. Mr. It is no argument, according to Mr. Chinoy, that the defences raised are technical and, therefore, no benefit can be derived from the same by the parties like the appellants-original defendants. Mr. Chinoy submits that as far as the pro-note is concerned the requisite stamp duty thereon is prescribed by the Indian Stamp Act, 1899. As far as the other documents are concerned, it is Articles 5 and 37 of the Maharashtra Stamp Act which must be looked into. Either which way, according to Mr. Chinoy the mandate is that the Court cannot receive these documents in evidence. In that regard, he relies upon the language of section 37 of the Indian Stamp Act, 1899, and section 38 thereof. Mr. Chinoy would submit that once section 35 casts an obligation that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of the parties, authority to receive evidence, or shall be acted upon, registered or authenticated by such person or by any public officer unless such instrument is duly stamped, then, by the provisions thereof it is not as if the Court is powerless or helpless in the matter. It can insist upon a adjudication with regard to proper stamp duty, payment of stamp duty pursuant to such adjudication and thereafter the defect is cured. Once this is the mandate flowing from section 35 and the words such as “or shall be acted upon” being inserted in sub-section (1), then, we cannot frustrate and defeat that object and purpose by allowing the first respondent-plaintiff to base the Summary Suit and equally the learned Judge to pass an order on the Summons for Judgment in furtherance or and by relying on these documents. 13. Mr. Chinoy, in support of his above submissions relied upon a judgment of the Hon'ble Supreme Court in SMS Tea Estates Pvt. Ltd. vs. Chandmari Tea Co. Pvt. Ltd. (2011) 14 SC 66. 14. On the other hand, Mr. Narichania, learned senior counsel appearing on behalf of the respondent No.1-plaintiff, which is the only contesting party, would submit that the appeal has no merit and must be dismissed. He would submit that the appellant does not dispute that they had executed an agreement, promissory note and have signed an acknowledgement accepting their liability to refund the advance. Narichania, learned senior counsel appearing on behalf of the respondent No.1-plaintiff, which is the only contesting party, would submit that the appeal has no merit and must be dismissed. He would submit that the appellant does not dispute that they had executed an agreement, promissory note and have signed an acknowledgement accepting their liability to refund the advance. Once they do not dispute the execution of these documents/instruments, they do not dispute their liability nor have they raised any defence which can be said to be even plausible, then, allowing them to rely on a technical plea and thereby reversing the judgment of the learned single Judge would cause immense prejudice and rather result in miscarriage of justice. 15. Mr. Narichania has taken us through paragraph 28 of the plaint to submit that the document referred therein is not required to be stamped. Further he takes us through the appeal paper-book and the documents at pages 173, 174 and 175 to submit that this is a composite claim. If it is otherwise admissible under Order XXXVII Code of Civil Procedure and a Summary Suit can be based on the above, then, we should not allow any of the technical defences or pleas to defeat a just and bona fide claim of the respondent No.1. Our attention is invited to pages 181, 182, 185, 195 to 199 of the paper-book to submit that each of these contain statements by which the acknowledgment of the liability can be inferred. There is no denial that such correspondence has not taken place. There is no compulsion or force and which can be said to be vitiating any of the documents, their contents or execution. Even when the defendants were under legal advise through their advocates, they have accepted their liability. Before payment, they were to make certain compliances with the Manual of Instructions issued by the Reserve Bank of India. It is in these circumstances that Mr. Narichania would rely upon the judgments of the Hon'ble Supreme Court which have been extensively referred in the impugned order and particularly the principle that the provisions of the Stamp Act cannot be utilized as a tool or a weapon and does not arm dishonest litigants in denying or defeating a just claim. Therefore, Mr. Narichania would submit that the appeals have not merit and they ought to be dismissed. 16. The only contention that Mr. Therefore, Mr. Narichania would submit that the appeals have not merit and they ought to be dismissed. 16. The only contention that Mr. Chinoy would raise in rejoinder is that in such matters of statutory compliance no equities arise. Mr. Chinoy then clarifies the legal position by submitting that it is not as if the respondent No.1-plaintiff cannot proceed with the suit. It is not as if he cannot take out a Summons for Judgment. A judgment can be signed in his favour provided the compliances are made with the Stamp Act and the provisions thereof and the stamp duties are adjudicated and paid. After ensuring the payment thereof, the Court can allow the first respondent to sign a judgment. In such circumstances, all the more we should not allow a serious infraction or violation of a statutory mandate to be condoned. Mr. Chinoy reiterates his submissions in opening. 17. For properly appreciating the rival contentions, we would firstly have to notice the provisions of the Code of Civil Procedure enabling institution of a Summary Suit. Order XXXVII of the Code of Civil Procedure has been brought on the statute book with a definite purpose. The same is titled Summary Procedure. The Code of Civil Procedure was amended so as to introduce this order. It applies to the Courts enumerated in Order XXXVII Rule 1 sub-rule (1). Order XXXVII Rule 2 states that subject to the provisions of sub-rule (1), Order XXXVII applies to the class of suits mentioned therein; where (a) suits based on bills of exchange, hundies and promissory notes, (b) in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest; (c) on a written contract or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee where the claim against the principal is in respect of a debt or liquidated demand only and now by the amendment such class of suits for recovery of receivables instituted by any assignee of a receivable. After the substantive Order XXXVII Rule 2 enables institution of Summary Suits, but with a rider that it should contain a specific averment to that effect that the suit invokes this order, that no relief which does not fall within the ambit of this rule has been claimed in the plaint and the inscription mentioned in clause (c) of sub-rule (1) of Rule 2 of Order XXXVII. The procedure for appearance of defendant is set out by Order XXXVII Rule 3. Order XXXVII Rule 3(4) states that if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. Thereafter the defendant may at any time but within ten days of service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. The two provisions enable the Court to consider as to whether the facts disclosed indicate that the defendant has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious. The leave to defend shall not be refused unless the Court reaches this satisfaction. However, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. The leave to defend shall not be refused unless the Court reaches this satisfaction. However, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. At the hearing of the summons for judgment, the Court can, if the defendant has not applied for leave to defend, or if such application has been made and is refused, sign a judgment in favour of the plaintiff forthwith or if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge, or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith upon non compliance or failure. 18. The Indian Stamp Act, 1899, and the provisions of which are relied upon are to be found in Chapter IV thereof. Section 33 deals with examination and impounding of instruments. Sub-section (1) states that every person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Further under sub-section (2) for that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. Further under sub-section (2) for that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. As far as section 34 is concerned, it states how special provisions as to unstamped receipts where any receipt chargeable with a duty not exceeding ten naye paise is tendered to or produced before any officer unstamped in the course of the audit of any public account, such officer may, in his discretion instead of impounding the instrument, require a duly stamp receipt to be substituted thereof. Then comes section 35 which reads as under :- “35. Instruments not duly stamped inadmissible in evidence, etc. Then comes section 35 which reads as under :- “35. Instruments not duly stamped inadmissible in evidence, etc. - No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that – (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.” 19. A bare perusal thereof would indicate that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. A bare perusal thereof would indicate that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. The proviso thereto enables admitting the instrument in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion and there are other stipulations enabling accepting the admission of the instrument. The admission of an instrument when not to be questioned is dealt with and provided in section 36. It states that where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The admission of improperly instruments is permissible in the circumstances set out by section 37. Section 38 provides for dealing with instruments which are impounded. The procedure after impounding is set out and thereupon the Collector's powers to stamp instruments impounded is to be found in section 39 and section 40. There could be cases of instruments unduly stamped by accident. Then, there are provisions enabling endorsements to be made on instruments on which duty has been paid under sections, 35, 40 or 41. Prosecution for offence against stamp law is to be found in section 43 and persons paying duty or penalty may recover the same in certain cases is a provision to be found in section 44. There is a provision for refund, non-availability for loss of instruments sent under section 38 and power of prayer to stamp bills and promissory notes received by him unstamped. Recovery of duties and penalties and all the above are covered by sections 45 to 48. Section 61 provides for revision of certain decisions of Courts regarding the sufficiency of stamps. 20. Recovery of duties and penalties and all the above are covered by sections 45 to 48. Section 61 provides for revision of certain decisions of Courts regarding the sufficiency of stamps. 20. The learned single Judge upon hearing the parties found that apart from the technical defence regarding the instruments being unstamped, there is no merit in any of the defences as contained in the affidavit-in-reply. The learned Judge has, in the impugned order, categorically observed that the defences are raised only to avoid the inevitable. From paragraph 21 onwards in the impugned Judgment, the defence of defendant Nos.5 to 7 has been considered. In paragraph 22 the first defence with regard to a personal guarantee not being invoked is considered and rejected. The second defence of presence of an arbitration clause in the agreement dated 2nd January, 2010, is considered in paragraph 23 and even that has been rejected by observing that at no stage did the defendants evince any interest in invoking this agreement/clause pertaining to arbitration. Then the defence that the refundable advance was an instrument and not a loan and not required to be repaid until the film was released is also considered and termed as misconceived. 21. Having considered all the submissions of the parties, the learned single Judge concluded in paragraph 28 that the defences raised by the appellants are bogus, sham, moonshine and misconceived. The circumstances of the case would require in the interest of justice and having regard to the nature of the defence, a conditional leave being granted. That is how the sum claimed in the suit was directed to be deposited within eight weeks. 22. Prior thereto and extensively uptil paragraph 20 of the impugned judgment and order, the learned Judge sets out the pleadings and deals with the arguments of all the defendants that the document, particularly the promissory note, cannot be relied upon. The learned Judge expressed an opinion that the defect is a curable one. The learned Judge then referred to all the provisions contained in the Indian Stamp Act, 1958. He then concluded that the Indian Stamp Act is a fiscal measure. It is enacted to secure revenue for the State on certain class of instruments and is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. He then concluded that the Indian Stamp Act is a fiscal measure. It is enacted to secure revenue for the State on certain class of instruments and is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. (See Hindustan Steel Ltd. Vs. Dilip Construction AIR 1969 SC 1238 ). This judgment is followed by this Court and particularly by a single Judge in the case referred to in paragraph 16 of the impugned judgment. 23. Mr. Chinoy would submit that this principle could not have been evoked and applied in the facts and circumstances of the present case. We do not agree. We find that all the stipulations, provisions and conditions contained in Order XXXVII of the Code of Civil Procedure are complied with. There is no dispute that the promissory note and the two documents which have been referred extensively by the learned single Judge can be the basis for institution of a Summary Suit. The Summary Suit having been based thereon could have been instituted and tried as such. There is no substance in the defence and contentions of the appellants on merit. Mr. Chinoy would submit that the learned single Judge has accepted the legal position that these instruments cannot be received in evidence or acted upon. He has, therefore, proceeded to impound each of them. Having so impounded them, he was not empowered to pass a conditional order. 24. We do not agree with Mr. Chinoy further. We must not forget that the Stamp Act envisages a duty on the instrument. The Stamp Act is concerned with the instrument and not the transaction embodied or contained in it. The underlying transaction, therefore, does not enter into consideration while determining the proper stamp duty, adjudicating it and pass an order for ensuring payment of the same. Thus, the above matters are not with which the Court is concerned and it can in appropriate cases such as the one before us proceed with the merits of the matter by ensuring that the proper stamp duty is adjudicated and paid. The learned single Judge has precisely ensured that. He has not allowed the appellants to rely on a technical plea and of the nature referred above. The learned single Judge has precisely ensured that. He has not allowed the appellants to rely on a technical plea and of the nature referred above. The course adopted by him, in the facts and circumstances of the case, cannot be faulted. We have found that in all the instruments based on which the suit has been laid and particularly those required by Order XXXVII there is 'an admission of' the liability. There is no denial on the execution of these documents. None of the defendants have ever questioned the contents thereof nor is there any interpretation other than the one placed by the plaintiffs on the contents thereof and which can be deduced from the defences raised. In such circumstances, allowing a just and legitimate claim to be defeated and frustrated by taking recourse to the fiscal measure was not permitted by the learned single Judge. 25. We have considered the plaint averments as a whole. It is not proper to pick one paragraph and read it in isolation as is done in the instant case by the appellants. The Summary Suit is based on the promissory note and other two documents. Those may require or not require stamp duty or some of them may require payment of stamp duty or some may require differential or deficit stamp duty to be paid. However, that cannot be the concern of the appellants. We have not found from a perusal of the paper-book that in the voluminous correspondence pursuant to the execution of the documents and prior or subsequent thereto have the appellants questioned the execution thereof. They have also not, barring raising some defence and here and there, denied their liability. All that they contend is that the amount lent is not a loan but a refundable advance. That was not payable until the film was released and the procedures thereof were accounted for. That defence on merits was found wholly untenable, frivolous and nothing but delaying tactics. When such is the conclusion reached by the learned single Judge, then, he has not allowed the appellant to rely on a technical and yet a curable defect. He has rightly applied the dictum in the judgment of the Hon'ble Supreme Court. That was applicable to the facts and circumstances of the present case. In Hindusthan Steel Limited (supra) an identical argument was considered and rejected in the following words : 1. He has rightly applied the dictum in the judgment of the Hon'ble Supreme Court. That was applicable to the facts and circumstances of the present case. In Hindusthan Steel Limited (supra) an identical argument was considered and rejected in the following words : 1. The respondents entered into a contract with Hindustan Steel Ltd. For “raising, stacking carting and loading into wagons liestone at Nandini Mines”. Dispute which arose between the parties was referred to arbitration, pursuant to Cl. 61 of the agreement. The arbitrators differed, and the dispute was referred to an umpire who made and published his award on April 19, 1967. The umpire filed the award in the Court of the District Judge, Rajnandgaon in the State of Madhya Pradesh and gave notice of the filing of the award to the parties to the dispute. On July 14, 1967, the appellant filed an application for setting aside the award under Section 30 and 33 of the Indian Arbitration Act, 1940. One of the contentions raised by the appellants was that the award was unstamped and on that account “invalid and illegal and liable to be set aside”. The respondents then applied to the District Court that the award be impounded and validated by levy of stamp duty and penalty. By order dated September 29, 1967, the District Judge directed that the award be impounded. He then called upon the respondents to pay the appropriate stamp duty on the award and penalty and directed that an authenticated copy of the instrument be sent to the Collector, Durg, together with a certificate in writing stating the receipt of the amount of duty and penalty. Against that order the appellant moved the High Court of Madhya Pradesh in exercise of its revisional jurisdiction. The High Court rejected the petition and the appellant appeals to this Court with special leave. 2. It is urged by the Counsel for the appellant that an instrument which is not stamped as required by the Indian Stamp Act, may, on payment of stamp duty and penalty, be admitted in evidence, but cannot be acted upon, for “the instrument has no existence in the eye of law”. Therefore, counsel urged in proceeding to entertain the application for filing the award, the District Judge, Rajnandagaon, acted without jurisdiction. 4. Therefore, counsel urged in proceeding to entertain the application for filing the award, the District Judge, Rajnandagaon, acted without jurisdiction. 4. An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology between Sections 35 and 35 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because Section 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by Section 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The Argument ignores the true import of Section 36. By that section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any is removed by the terms of Section 42(2) which enact, in terms unmistakable, that every instrument endorsed by the Collector under Section 42(1) shall be admissible in evidence and may be acted upon as if it had been duly stamped. 5. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. 5. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. Once that objected is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the scheme is clear, Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; section 40 provides the procedure for instruments being impounded, sub-section (1) of Section 42 provides for certifying that an instrument is duly stamped, and sub-section (2) of Section 42 enacts the consequence resulting from such certificate. 6. Our attention was invited to the statement of law by M.C. Desai J in Mst. Bittan Bidi Vs. Kuntu Law ILR (1952) 2 All 985 : AIR 1962 All 996 that :- “A court is prohibited from admitting an instrument in evidence and a Court and public officer both are prohibited from acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission and that a document can be admitted in evidence but not be acted upon. Of course it cannot be acted upon without its being admitted, but it can be admitted and yet be not acted upon. If every document, upon admission, became automatically liable to be acted upon, the provision in Section 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provision that it shall not be admitted in provision that it shall not be admitted in evidence for any purpose. To act upon an instrument is to give effect to it or to enforce it.” In our judgment, the learned Judge, attributed to Section 36 a meaning which the Legislature did not intend. To act upon an instrument is to give effect to it or to enforce it.” In our judgment, the learned Judge, attributed to Section 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to Section 42(2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped”. 26. This Judgment was followed in a later judgment in the case of Dr. Chiranji Lal (D) by L.Rs Vs. Hari Das (D) by L.Rs. reported in AIR 2005 SC 2564 . Pertinently, Mr. Chinoy's extreme argument that once impounded the instruments as above cannot be relied upon to pass a conditional order is not borne out by the legal provisions noted in Hindustan Steel and analysed therein. That they are acted upon without adherence to the Indian Stamp Act therefore is not a sound argument to canvas in the facts of our case. 27. Beyond this contention and based on the applicability of the Stamp Act nothing really is argued before us on merits. Even otherwise we do not find that the defences raised have any merit or can be termed as substantial. We also do not find that the reliance placed on the SMS Tea Estates Pvt. Ltd. (supra) to be appropriate in the facts of our case. Any larger or wider question based on the provisions of law, the power of the court or the authority to receive unstamped instruments in evidence need not be considered in further details or gone into conclusively in this case. Purely going by the facts and circumstances of the present case and the conduct of the appellants, we do not think that the learned single Judge can be faulted in the exercise that he undertook. He was not obliged to postpone the adjudication until the proper stamp duty was adjudicated and paid. He was not obliged to reject the request of the respondent No.1-plaintiff or defer the hearing of the Summons for Judgment or dismiss it. He was not obliged to postpone the adjudication until the proper stamp duty was adjudicated and paid. He was not obliged to reject the request of the respondent No.1-plaintiff or defer the hearing of the Summons for Judgment or dismiss it. Purely in the facts and circumstances of the present case and when he found that all that the defendants are doing is to defeat and frustrate a just, legitimate and bona fide claim, the learned Judge, by relying on the principle enunciated in the Supreme Court Judgment, granted conditional leave to defend. Such an order can neither be termed as perverse or vitiated by any error law apparent on the face of the record. It does not require any interference in our appellate jurisdiction. The appeals are devoid of merits and are dismissed. 28. Our conclusion is based on the recent judgment of the Supreme Court which reiterates the settled tests and to be found in the case of IDBI Trusteeship Services Limited vs. Hubtown Limited, 2016 (12) Scale 24, can be summed up by reproducing paragraphs 17 and 18. “17. It is thus clear that O.XXXVII has suffered a change in 1976, and that change has made a difference in the law laid down. First and foremost, it is important to remember that Milkhiram’s case is a direct authority on the amended O.XXXVII provision, as the amended provision in O.XXXVII Rule 3 is the same as the Bombay amendment which this Court was considering in the aforesaid judgment. We must hasten to add that the two provisos to sub-rule (3) were not, however, there in the Bombay amendment. These are new, and the effect to be given to them is something that we will have to decide. The position in law now is that the trial Judge is vested with a discretion which has to result in justice being done on the facts of each case. But Justice, like Equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are sworn enemies. The discretion that a Judge exercises under Order XXXVII to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Joseph’s multi-coloured coat – a large number of baffling alternatives present themselves. But Justice, like Equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are sworn enemies. The discretion that a Judge exercises under Order XXXVII to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Joseph’s multi-coloured coat – a large number of baffling alternatives present themselves. The life of the law not being logic but the experience of the trial Judge, is what comes to the rescue in these cases; but at the same time informed by guidelines or principles that we propose to lay down to obviate exercise of judicial discretion in an arbitrary manner. At one end of the spectrum is unconditional leave to defend, granted in all cases which present a substantial defence. At the other end of the spectrum are frivolous or vexatious defences, leading to refusal of leave to defend. In between these two extremes are various kinds of defences raised which yield conditional leave to defend in most cases. It is these defences that have to be guided by broad principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case. 18. Accordingly, the principles stated in paragraph 8 of Mechelec’s case will now stand superseded, given the amendment of O.XXXVII R.3, and the binding decision of four judges in Milkhiram’s case, as follows:- a. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit; b. if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend; c. even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant’s good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security; d. if the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. e. if the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith; f. if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.” 29. Thus, when defence raised is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. Even a part of the claim being admitted or the defence raising triable or substantial issue, the Court is able to secure the claim of the plaintiff by ensuring that part amount and which is admitted, is deposited in Court. We do not think that we have deviated or the learned single Judge has deviated from these principles. 30. In the view that we have take we need not refer to any judgment cited by Mr. Narichania and particularly that of a learned single Judge in the case of R. Kumar & Co. vs. Chemicals Unlimited AIR 2001 Bom 836. 31. At this stage, Mr. 30. In the view that we have take we need not refer to any judgment cited by Mr. Narichania and particularly that of a learned single Judge in the case of R. Kumar & Co. vs. Chemicals Unlimited AIR 2001 Bom 836. 31. At this stage, Mr. Kantawala and the other counsel appearing for the appellants in the appeals pray that this Court should grant an appropriate extension so as to enable the appellants to comply with the directions of the learned single Judge. The time to deposit the amount under the impugned order is extended for a period of four weeks in order to enable the appellants to comply with the order of the learned single Judge. 32. In view of the dismissal of the appeals, nothing survives in the Notices of Motion and they are, accordingly, disposed of.