Topic: Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd / Order 37, CPC, Summary Suits

Order 37, CPC, Summary Suits

Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd
Bench: S.C. Agrawal, S. Rajendra Babu - Date Of Judgment: 30/04/1998


Rajendra Babu.J.

Leave granted.

This appeal arises out of an order made     by the High Court of Bombay affirming an order made by the Trial Judge in a summary suit filed under     Order 37 of C.P. C. whereby the Trial Judge had issued summons for Judgment and made it absolute against the appellants and consequently passed a decree against    them for a sum     of Rs. 37,51,519.43    with interest and certain other incidental charges. A suit was brought by the respondents on the basis of bills of exchange in respect of which the appellants are the acceptors. M/s. Khanna Sales Corporation are the grawees of the bill who have Local Bill Discounting facility with the respondents. Under the said     facility, M/s. Khanna Sales     Corporation discounted the    bills of exchange. The respondent bank made payments to M/s. Khanna Sales Corporation on the basis of the bills of exchange. Since the amounts under the Bills of Exchange were not paid     and received by the respondent bank when they were presented within the stipulated time     and since demand did not come for to despite notice of demand, the respondent    bank filed a summary suit as aforesaid. Nine bills of exchange had    been drawn by     M/s. Khanna Sales Corporation. The appellants before us sought leave to defend themselves contending that the Bills of Exchange    were executed without consideration as neither the     goods    were sold nor supplied in    the transaction in question.     The appellant alleged fraud, collusion and connivance between the officers of the    respondent and     M/s. Khanna Sales Corporation. The learning Trial Judge refused the leave to defend suit. On appeal, the Division    Bench considered the matter and held that the undisputed position is that the appellants are    the acceptors of the Bills of     Exchange in question and that no goods were supplied or actually sold by M/s. Khanna Sales Corporation to the appellants    and, therefore, the    Bills of Exchange were not supported by consideration. Section    43 of the Negotiable Instruments Act saves the right of the holder     in due courses like     the respondent to claim the amount of Bill of Exchange. In certain other instances the Bills of     Exchange had    been negotiated through the bank without any difficulty    and, therefore, Division Bench was    of the view that there is no logic in the submission made on behalf of the appellants. If any fraud has been alleged that could be reflective on their conduct and, therefore, it would be     too much for     the respondent bank     or their officers to    be instrumental in perpetration of     such a     fraud by the appellants and    M/s. Khanna Sales Corporation and,     therefore, the appellants cannot escape their liability    and responsibility under the Bills of Exchange in question. On that basis they took the view that pleas raised by the appellants were frivolous and have no substance and merits in their defence. In this appeal it     is contended that what should be examined at the stage of grant of leave to defend is whether there was a real or a     snam defence and whether the facts alleged by the appellants if established would be a good defence and the trial    court should go into the question whether     the facts alleged were true or not, as    that situation would     arise only after leave was granted and at the trial. That a condition as to security could be imposed if the    Court was of the opinion that     the defence was out forward with a view to prolong this suit.

The position in law has been explained by this Court in Santosh Kumar vs. Mool     Singh (1958) SCR 1211. Milkhiram (India) Private     Ltd. vs. Chaman Lal Bros. AIR 1965 SC. 1698 and Michalec Eng. & Mfg. vs. Bank Equipment Corporation AIR 1977 SC     577. The propositions laid down in these decisions may be summed up as follows:-

(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, 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 possibly food defence, 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, if the affidavit disclosed that at the trial he may be able to establish a defence to the plaintiff claim, the court may    impose conditions at the time of granting leave to defend- the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or    practically moonshine, the defendant is not entitled     to leave defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him     to try     to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.

In fact in identical matters on    the file of the said High Court     in summary suit No. 2963 of 1990 Dena Bank vs. M/s. Sunil Enterprises and summary suit No.1193 of 1989 Bank    of India vs. Mahendra Sarabhai Choksi, leave to defend had been granted to defendants.

In those cases the circumstances arising are that the Bills of Exchange were accepted by the defendant even though they had already discharged earlier. Bills of Exchange as and when they were due and the bank had continued to pay out such large amounts of    Bills of Exchange accepted by     the party who is already a defaulter. It is also contended that some of     the Bills of Exchange were mere secondary documents and, therefore, these matters require examination. It cannot be said that the defence raised by the appellants is totally defenceless or    moonshine or illusory as noticed earlier in the course of this order. Therefore, the view taken by the High Court that appellants have absolutely no prima facie case, may not be correct. And in the circumstances, we allow appeals, set aside the order made by the Division Bench and the judge on the original side of the Bombay High Court and dismiss the Summons for Judgment, grant leave and direct unconditional leave to the defendant to defend the suit. Appeals, therefore, stand allowed accordingly.