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TMI Blog1949 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... s dishonoured on 16th April, 1947. The plaintiff, therefore, claims that he is entitled to recover the suit amount from the defendant on the basis of the negotiable instrument. 3. As the suit was filed under summary procedure the defendant had to obtain leave to defend the suit under Order 7, Rule 6, Original Side Rules and for this purpose he made an application to the Master, Application No. 3010 of 1947. The main defences raised by him in that application were that the plaintiff was not a holder in due course as there was no consideration for the endorsement and secondly that the plaintiff had no cause of action to sue for the recovery of the amount as no notice of dishonour was given to the defendant until 26th May, 1947, which according to him was wholly an unreasonable notice as considerable time had elapsed from the date of dishonour. 4. The Master was of opinion that as the payee endorsed the cheque in reduction of his previous liability and also to provide a margin for future advances the endorsement was supported by consideration and that, the plaintiff was, a holder in due course. To get over the plea of unreasonable delay in issuing a notice the plaintiff pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if true would not amount to a valid defence in law, and a fair issue has been interpreted to mean a plausible issue in the sense that if the facts alleged are established there would be a tenable defence. In coming to a conclusion whether such a test is satisfied or not the Court should take into consideration all the circumstances of the case as disclosed in the plaint and in the affidavits and other material that is available as was laid down by Buven, L.J. in Blaiberg v. Abrahams 77 L.T.J.O. 255 (C.A.). The question was considered in our Court after the decision of the House . of Lords (Jacobs v. Booth's Distillery Co.(1901) 85 L.T. 262) by Schwabe, C.J., and Ramesam, J., in Periya Miyana Marakayar v. Subramania AIR1924Mad612 , and it was explained in that decision that by the expression triable issue is meant a plea which at least is plausible. The defence must not be as pointed out by Lord Chancellor Halsbury in Jacobs-v. Booth's Distillery Co. (1901) 85 L.T. 262 an attempt merely to delay the trial of the action. 8. The object of the rule requiring that leave to defend should be obtained in suits under summary procedure is to see that in the class of suits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it seems to me to be perfectly clear that the order of the Court of appeal ought to be reversed. 10. The principle in Jacobs v. Booth's Distillery Co. (1901) 85 L.T. 262 and the principle of the decision in Periya Miyana Marakayar v. Subramania Aiyar (1923) 46 M.L.J. 255 were again applied by this Court in Sundaram Chettiar v. Valliammal (1934) 68 M.L.J. 16 : I.L.R. 58 Mad. 116. According to the learned Chief Justice (Sir Owen Beasley) the test is to quote his words: If the defendant sets up a defence in his affidavit in support of his application for leave to defend which, if he should succeed in proving, would entitle him to succeed in the suit, then the Master or the Court before whom the application comes has no discretion whatever in the matter and unconditional leave to defend must be granted. A triable issue in such a case has been raised by the defendant and it is not open to the Master or anybody else other than the trial Judge to go into the merits and discover whether that case is a true one. In the yearly Practice of the Supreme, Court for 1939 the effect of the judgment of the House of Lords in Jacobs v. Booth's Distillery Co.(1901) 85 L.T. 262, is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence was bona fide. The decision in Sundaram Chetti v. Valliammal (1934) 68 M.L.J. 16 : I.L.R. 58 Mad. 116. was also doubted. The decision in Sundaram Chetti v. Valliammal (1934) 68 M.L.J. 16 : I.L.R. 58 Mad. 116. did lay down the broad proposition that the defence should not only raise a triable or real issue or a plausible issue but that it should also be a bona fide one. If the issue raised is a real one no further question of the consideration of the bona fide nature of the defence arises. The very fact that the defence is real indicates that it is bona fide. The learned Judges, when they referred to the triable issue and bona fide defence at page 41 in Ebrahim Sait's case AIR1938Mad962 must have meant by those observations to indicate, that it is not enough to have an issue whatever be its nature and substance but that it should be real and substantial. The defence must raise a plausible case for trial and if established a sufficient answer to the claim. We do not think that the decision in Ebrahim Sait v. South India Industrials, Ltd. AIR1938Mad962 , is intended to lay down a rule which is contrary to the decision of the House of Lords in Jacobs v. booth's Distillery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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