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TMI Blog2004 (1) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... a summary procedure provided therein. The learned Judge, on the oral prayer of the plaintiff, had called for records from the Reserve Bank of India, which were produced. Mr. Bachawat, appearing for the respondent, contended that this was not objected to by the defendant/appellant. Having examined those documents, the Court found that the defendant had no defence, therefore, refused leave to defend and decreed the suit on admission on various grounds to which we shall refer at a latter stage. 2. Mr. Hiranmoy Dutt, learned Counsel appearing on behalf of the appellant-bank, submits that it is not necessary to make out a good defence. It is only if the defendant is able to make out a case that he has a defence through a triable issue raised, in that event, no decree under Chapter XIII-A could be signed. He relied on the decisions in Mechalec Engineers Mfrs. v. Basic Equipment Corpn. AIR 1977 SC 577; Mrs. Raj Duggal v. Ramesh Kumar Bansal AIR 1990 SC 2218 and Sunil Enterprises v. SBI Commercial International Bank Ltd. [1998] 5 SCC 354 in support of his contention. Respondent s submission : 3. Mr. Bachawat, learned Counsel appearing on behalf of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the question as raised in the affidavit and weigh the materials only on the strength of the affidavit without undertaking the process of trial as is required in a suit. The procedure is a summary one. The right of defence is attempted to be taken away without permitting the defendant to raise his defence or to defend the claim of the plaintiff. This is a procedure, which is exceptional in nature and a deviation from the normal course of adversary system. Therefore, this power is required to be exercised with care and caution. It is only in cases where, in fact, there is no defence available to the defendant to defend the claim or where the defence sought to be raised is sham or illusory or practically a moonshine this procedure is available. Such power is exercised so as to prevent the litigation to be dragged on allowing the defendant to raise a sham or illusory or practically moonshine defence for delaying or lengthening or abusing the process by raising untenable or frivolous defence. At the same time, these provisions take away the defendant s valuable right to defend. Therefore, the Court s duty is to examine whether there is a defence or a triable issue has been raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce records, etc., in terms of clause ( b ) of Rule 5 thereof. The scheme of the rules does not permit the Court to consider any affidavit except those by the plaintiff and the defendant. The Court cannot require attendance or examination of anyone other than the defendant. The expression by affidavit or otherwise in Rule 6 is to be read in the context of clause ( c ). The expression otherwise cannot anything more than what is permitted under the rules. Since a right is being denied, the rules are to be interpreted strictly as expressed. The Court cannot add to it something beyond the scope of these rules. 6.3 That apart the word defendant used in clause ( c ) cannot be stretched to include witnesses of the plaintiff or the defendant. In this case, the bank was asked to appear at the behest of the plaintiff to produce documents. This is in effect examination of witness for production and proof of documents on behalf of the plaintiff. This is done without any opportunity to the defendant to defend. In exercise of clause ( c ), the Court cannot do so, whether opposed or not. Omission to oppose will not enable the Court to assume a jurisdiction it lacks. Leave to defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to call for records from third parties or to rely on certain materials or to examine witness or affidavits by third parties, in that event, it shows that a triable issue has been raised. The calling for the records from the Reserve Bank of India and examination of those documents and examination of affidavit filed by it, itself shows that the Court cannot pass an order on the basis of the affidavits filed by the defendant. It has to examine the defence so raised by the defendant in the affidavit but not through examination of a third party or by calling for records from a third party or requiring the third party to file affidavit and examining the same. This itself indicates the raising of a triable issue. The legal proposition : As settled by the Apex Court : 8. These questions are already settled principles of law. Here we have the benefit of the decision in Mechalec Engineers Mfrs. case ( supra ), which lays down the principles to be followed while considering the question of granting leave to defend viz. : "( 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defence, he ought to have leave. Summary judgments under order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises, the Court should not reject the defence of the defendant merely because of its inherent implausibility of its inconsistency." (p. 2219) 8.2 The same proposition has been repeated in Sunil Enterprises case ( supra ) following Santosh Kumar v. Bhai Mool Singh AIR 1958 SC 321; Milkhiram (India) (P.) Ltd. v. Chamanlal Bros. AIR 1965 SC 1968 and Mechalec Engineers Mfrs. v. Basic Equipment Corpn. AIR 1977 SC 577. 8.3 Mr. Bachawat had relied on the principle laid down in Banque De Paris Et Des Pays-Bas (Suisse) S.A. s case ( supra ) as quoted bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Exchange Regulation Act or not was also a question which was to be decided having regards to the facts and circumstances of the case on proper proof and on evidence. It cannot be decided in a summary procedure on the basis of affidavits without allowing the defendant or the Reserve Bank of India to defend the question as the case may be. 9.2 Then again if the refusal of permission was illegal then the amount was liable to be transmitted to the foreigner s account. It cannot be refunded. This also indicates the making out of a bona fide defence. 9.3 The other question that the lien could not be relied upon because of the fact that at that point of time the plaintiff had nothing due to the bank and the alleged foreign decree was not in existence. But the fact remains that this amount was deposited by the plaintiff as pleaded in paragraph 5 of the plaint for being transmitted to the foreigner s account in London subject to permission of the Reserve Bank of India. There are certain other documents, which go to show that this amount was intended for settling the dues of the bank against S.L. Sethia Liners Limited. These are questions, which definitely raise triable is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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