1. In this suit the defendant applies for leave to defend. The suit was filed on 12th August of this year under Order 37, Civil P. C. The plaintiffs' claim is based on two promissory notes dated respectively 24th August 1934 and 27th August 1934, and the amount due on those two notes is said to be nearly Rs. 3,15,000. In para. 3 of their plaint the plaintiffs further state that they are pledgees in respect of certain articles of jewellery for payment of the money due in respect of the said notes and they ask for leave under Order 2, Rule 2, Civil P. C., to reserve their rights as such pledgees. It is not denied that these two promissory notes were executed on the cancellation of the two promissory notes which had been made in 1931. There is no doubt that jewellery was pledged sometime in 1931 with the father of the plaintiffs, and it also appears quite clear that that jewellery was given as security for the loan for which the promissory notes were also executed. On behalf of the plaintiffs Mr. Chatterjee has referred to the case in Abrey v. Crux (1870) 5 C P 37 and contends that the defence which the defendant now seeks to put forward attempts to alter or limit his liability as it appears on the face of the promissory notes, namely to pay the amount there shown on demand. He also refers to the judgment of this Court in Shyam Sunder Chakravarti v. Tittaghar Paper Mills Co. Ltd. 1928 Cal 123 where the Court decided, 'that where a triable issue was not of fact but one of law only which was decided against the defendant it was justified in passing summary judgment.' In my opinion, this case is distinguishable from the case in Abrey v. Crux (1870) 5 C P 37 inasmuch as this is not merely a simple suit on promissory notes, but it does definitely refer to the pledges which have been made and the plaintiff asks for leave to reserve his rights with regard to the jewellery which has been pledged.
2. The defendant also states that since the execution of the promissory notes various sums of money have been paid in satisfaction of the amount due and that upon a proper account being taken it will be found that the amount claimed is in excess of the amount due. No particulars have been given, but there is a definite allegation in the petition which has been verified by the defendant himself. For the defendant an offer has been made to give any security for costs which the Court may direct. There is no question, it is contended, of giving security for the amount of the claim because that is secured already by the jewellery. The defendant states that the jewellery is worth over 6 lakhs, and there is no definite traverse of that statement. On giving security for Rs. 600 within ten days the defendant will have leave to defend, and will file his written statement within a week thereafter, and the costs of this application will be costs in the cause. In default of security being furnished within the time allowed this application will stand dismissed with costs.