Principle to grant leave to defend in order XXXVII of CPC Suit.

The defendant may, at any time within ten days from 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:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Landmark Judgment about principle to grant the leave to defend in summery suit under order XXXVII of CPC>

MECHELEC ENGINEERS AND MANUFACTURERS

Vs.

RESPONDENT:

M/S. BASIC EQUIPMENT CORPORATION

DATE OF JUDGMENT01/11/1976

BENCH:

BEG, M. HAMEEDULLAH

BENCH:

BEG, M. HAMEEDULLAH

RAY, A.N. (CJ)

SINGH, JASWANT

CITATION:

1977 AIR 577 1977 SCR (1)1060

1976 SCC (4) 687

ACT:

Civil Procedure Code, S. 115–Jurisdiction of High Court to interfere with the Trial Court’s discretionary order, when exercisable.

HEADNOTE:

The appellant issued the respondent a cheque which was dishonoured. The respondent alleged that the cheque was the consideration for goods supplied. The appellant admitted issuing the cheque but denied by privity of contract. The respondent filed a suit under order 37 C.P.C., and the appellant applied for the required leave to defend, which was granted by the trial Court unconditionally. On revision under section 115 C.P.C., the High Court held that triable issues arose for adjudication., but, it considered the defence to be dishonest. If allowed the revision petition and gave conditional leave to defend on the ground that the defences were not bona fide.

Allowing the appeal, the Court

HELD: It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned. In other cases, it is not fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined. High Court’s interference under sec. 115 C.P.C. with the correct exercise of its discretion by the trial Court was patently erroneous. 11062

Santosh Kumar v. Bhai Mool Singh [1958] S.C.R. 1211 at 1215, Jacobs v. Booth’s Distillery Co. [1901] 85 L.T. 262 followed.

Smt. Kiranmoyee Dassi and another v. Dr. J. Chatterjee (49 C.W.N. 246 ,at 253) distinguished. M.L. Sethi v.R.P. Kapur [1973] (1) S.C.R. 697: The Managing Director (MIG) Hindustan Aeronautics Ltd. Bulana- gar, Hyderabad & A nr. v. A Ajit Prasad Tarway, Manager (Purchase and Stores). Hindustan Aeronautics Ltd. Balanagar, Hyderabad (AIR 1973 SC 76); D.L.F. Housing & Construction Co. Pvt. Ltd., New Delhi v. Sarup Singh & Ors. [1970] 2. S.C.R. 368; and Milkhiram (India) (P) Ltd. and Ors. v. Chamanlal Bros. (AIR 1965 SC 1998) referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 508 of 1976. (Appeal by Special Leave from the Judgment and Order dated 27-10-1975 of the Delhi High Court in Civil Revision No. 115/75).

S.N. Andley, Urea Dutta and T.C. Sharma, for the appellant.

K.C. Agarwala and M.M.L. Srivastava, for the respondent. The Judgment of the Court was delivered by BEG. J. The plaintiff-respondent ,alleged to be a regis- tered partnership firm filed a suit on 25th April, 1974, through Smt. Pushpa Mittal, shown as one of its partners, for the recovery of Rs. 21,265.28 as principal and Rs. 7655/-, as interest at 12% per annum. according to law and Mercantile usage, on the strength of a cheque drawn by the defendant on 12th May, 1971, on the State Bank of India, which, on presentation, was dishonoured. The plaintiff alleged that the cheque

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was given as price of goods supplied. The defendant-appel- lant firm admitted the issue of the cheque by its Managing partner, but, it denied any privity of contract with the plaintiff firm. The defendant-appellant had its own version as to the reasons and purposes for which the cheque was drawn.

The suit was instituted under the provisions of Order 37 Civil Procedure Code so that the defendant-appellant had to apply for leave under Order 37, Rule 2, of the Code to defend. This leave was granted unconditionally by the Trial Court after a perusal of the cases of the two sides. Order 37, Rule 3, Civil Procedure Code lays down: “( 1 ) The Court shall, upon application by the defendant give leave to appear and to defend the suit, upon affidavits which dis- close such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given uncondi- tionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit”.

A learned Judge of the High Court of Delhi had on a revision application under Section 115 Civil Procedure Code interfered with the order of the Additional District Judge of Delhi granting unconditional leave, after setting out not less than seven questions on which the parties were at issue. The learned Judge had, after discussing the cases of the two sides and holding that triable issues arose for adjudication, nevertheless, concluded that the defences were not bona fide. He, therefore, ordered: “For these reasons I would allow the revision petition and set aside the order of the trial Court. Instead I would grant leave to the defendant on their paying into Court the amount of Rs. 21,265.28 together with interest at the rate of 6 per cent per annum from the date of. suit till payment and costs of the suit (Only court fee amount at this stage and not the lawyer’s fee). The amount will be deposited within two months. There will be no order as to costs of this revision”.

The only question which arises before us in this appeal by special leave: Could the High Court interfere, in exercise of its powers under section 115, Civil Procedure Code, with the discretion of the Additional District Judge, in granting unconditional leave to defence to the defendant-appellant upon grounds which even a perusal of the order of the High Court shows to be reasonable ? Santosh Kumar v. Bhai Mool Singh(1), was a case where a cheque, the execution of which was admitted by the defend- ant, had been dishonoured. The defendant had set up his defences for refusal to pay.

(1)[1958] SCR 1211-1215.

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This Court noticed the case of Jacobs v. Booth’s Distill- ery Company(1), where it was held that, whenever a defence raises a really triable issue, leave must be given. Other cases too were noticed there to show that this leave must be given unconditionally where the defence could not be shown to be dishonest in limine. This Court observed there (at p. 1215):

“The learned Counsel for the plaintiff- respondent relied on Gopala Rao v. Subba Rao (AIR 1936 Mad. 246, Manohar Lal v. Nanhe Mal (AIR 1938 Lah. 548), and Shib Karan Das v. Mohammed Sadiq (AIR 1936 Lah. 584). All that we need say, about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to. defend. We agree with Varadachariar J. in the Madras case that the Court has this third course open to it in a suitable case. But, it cannot reach the conclusion that the defence is not bona fide arbitrarily. It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter”,

On general principles, relating to the exercise of jurisdiction of High Courts under section 115, Civil Proce- dure Code, several cases were cited before us by Mr. Andley: M.L. Sethi v.R.P. Kapur(2); The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & lint. v. Ajit Prasad Tarway, Manager, (Purchase & Stores), Hindustan Aeronautics Ltd., Balanagar, Hyderabad(3); D.L.F. Housing & Construction Co. Pvt. Ltd. New Delhi v. Sarup Singh & Ors. (4); Milkhiram (India) Pvt. Ltd. & Ors. v. Chamanlal Bros.(5)

We need not dilate on the well established principles repeatedly laid down by this Court which govern jurisdiction of the High Courts under section 115 C.P.C. We think that these principles were ignored by the learned Judge of the High Court in interfering with the discretionary order after a very detailed discussion of the facts of the case by the learned Judge of the High Court who had differred on a pure question of fact–whether the defences could be honest and bona fide. Any decision on such a question, even before evidence has been led by the two sides, is generally hazard- ous. We do not think that it is fair to pronounce a cate- gorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined. In the case before us, the defendant had denied, inter alia, liability to pay anything to the plaintiff for an alleged supply of goods. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be,

(1) [1901] 85 L.T. 262. (2) [1973] 1 S.C.R. 697. (3) AIR 1973. SC 76. (4) [1970] (2) SCR 368. (5) AIR 1965 SC 1698.

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questioned. In the judgment of the High Court we are unable to find aground of interference covered by Section 115 C.P.C.

In Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253):

“(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. (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 infer- ence 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 judg- ment 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 practi- cally 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 Plain- tiff 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 se- cured 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”.

The case before us certainly does not fall within the class (e) set out above. It is only in that class of case that an imposition of the condition to deposit an amount in Court before proceeding further is justifiable. 49 C.W.N. 246, 253.

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Consequently, we set aside the judgment and order of the High Court and restore that of the Additional District Judge. The parties will bear their own costs. M.R . Appeal allowed.