9911796707
TMI Blog1985 (3) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the defendant to file written statement. 2. On 20th January, 1982 the plaintiff made an application under Chapter XIIIA. The defendant contested the application by filing affidavit-in-opposition. The plaintiff filed affidavit-in-reply. In the affidavit in support of the application under Chapter XIIIA the plaintiff has alleged that on the request and orders of the defendant, the plaintiff had from time to time supplied coal to various concerns and the defendant who is interested in and connected with the said concerns agreed to pay the price of such supplies. The defendant, it is alleged, by writing dated 12th September, 1979 and signed by him confirmed and unconditionally acknowledged that a sum of Rs. 4,16,836.32p was due and payable by the defendant to the plaintiff with agreed interest at the rate of 12% per annum. The alternative case is that on or about September 12, 1979 the accounts in respect of transactions between the parties were gone into and stated by the said writing dated September 12, 1979 by and between the plaintiff and the defendant in Calcutta and signed by the defendant. By the said writing, the defendant confirmed that a sum of Rs. 4,16,836.32p w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant be at liberty to defend this suit. And it is further ordered that the defendant be at liberty to furnish such security as aforesaid by way of immoveable property in any municipal town in the State of Uttar Pradesh. And it is further ordered that in the event of the defendant furnishing such security as aforesaid within the time aforesaid the defendant be at liberty to file his written statement in this suit within one week thereafter from the date of furnishing security as aforesaid and that in that event the cost of and incidental to this application be costs in the suit. And it is further ordered that in default of the defendant furnishing such security as aforesaid within the time aforesaid there will be a decree in terms of prayer (a) of the Master's Summons for the sum of Rs. 4,41,850.32 paise against the defendant under Chapter XIIIA of the Rules of this Court. And it is further ordered that the said Registrar and all parties concerned do act on a signed copy of the minutes of this order signed by an officer of this court being produced before them. 5. Mr. Nripendra Nath Dutt, learned Counsel appearing for the appellant has contended that more than one triab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any suit has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgement for the amount claimed together with interest if any or for the recovery of the land as the case may be and costs. The defendant may show, cause against both application by affidavit. The affidavit shall state whether the defence alleged goes to the whole or to a part only and (if so) to what part of the plaintiff's claim and shall deal specifically with all matters of fact. Rule 6 provides that' upon such application the Judge may, unless the defendant shall satisfy by affidavit or otherwise that he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, the Judge make an order refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff. 8. To resist the claim of the plaintiff, the defendant has to raise a triable issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant categorically denied the confirmation or acknowledgement. The alternative case of the plaintiff that the account was stated by the said writing dated 12th September. 1979 has also been denied categorically by the defendant. The defendant has challenged the correctness, validity and genuineness of the said writing dated 12th September, 1979. The case of the defendant is that the signed paper has been utilized for the purpose of creating an acknowledgement. Thus the entire case of the plaintiff is based on the said document dated 12th September, 1979. If this document goes then the whole suit would fail. The question of limitation is also dependant on whether the document dated 12th September, 1979 is genuine or not. The question of jurisdiction has also been raised. Admittedly the defendant does not reside in Calcutta and the suit has been instituted under clause 12 of the Letters Patent. The jurisdiction of this Court to entertain the suit will depend on whether any part of the cause of action has arisen within the jurisdiction of this Court or not. It has been alleged that the said writing dated. 12th September, 1979 was issued from Calcutta and received by the plaintiff at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the statements on either side he rather thinks that the Plaintiff has a better prospect of success then the Defendant. There was a specific denial with respect of this agreement and it would be quite impracticable to decide that matter under Chapter XIIIA . The Division Bench further observed that the said case is one in which proper order would have simply been an unconditional leave to defend; but it appears that at the last stage of the summons the parties appeared before the learned Judge and the learned Counsel for the Defendant is recorded to have said that he consented to a decree for Rs. 15,000/- which he contended was the principal sum due . 11. Mr. Anindya Mitra has sought to distinguish the aforesaid decision on facts. He has submitted that in that case the Court has rightly held that under Chapter XIIIA the Court has no jurisdiction to pass a declaratory decree or to order sale of shares and jewellery. But the decision did not rest on the question whether the Court had jurisdiction under Chapter XIIIA to pass a declaratory decree or to order sale of securities. The Division Bench was of the view that where the defendant denied the agreement which was the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 practically 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 plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed as paid into Court or otherwise secured 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. 14. In arriving at the said conclusion the learned Judge relied on the observation in the case of Radha Kissen Goenka vs. Thakursidas Khemka (supra). There Das, J. considered various decisions of English Courts on Order 14of the English Rules. The provisions of Chapter XIIIA have been adopted from Order 14of the English Rules. The judgment of Das, J. was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where on the facts disclosed in the affidavits it appears that there is a triable issue, it can be said that the defence raised by the defendant is not frivolous or vexatious or no defence at all. 17. It has been contended by Mr. Mitra that in view of the breach of solemn undertaking to the Court by the appellant the appeal is not competent nor main tamable and should be dismissed. The breach complained of is non-inclusion of the order dated 23rd August, 1982 admitting the appeal and the list of dates relevant for the determination of the question of limitation. We do not think that on the facts of this case, we shall be justified in dismissing the appeal on the breach of the aforesaid undertaking. We have gone through the records and we find that the appeal has been filed within the period of limitation. The aforesaid undertaking will therefore, stand discharged. 18. It has also been contended by Mr. Mitra that in default of furnishing security the final judgment has been passed and the decree was sought to be executed. The defendant has not made independent appeal against the execution proceeding and as such this appeal has become infructuous. We are unable to accept this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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