TMI Blog2015 (10) TMI 2707X X X X Extracts X X X X X X X X Extracts X X X X ..... o consideration the consequences therefor. In the case on hand, we have perused the material on record including the FIR dated 9th August, 1999 registered by the CBI at the instance of Chief Vigilance Officer, SBH and also the Charge Sheet filed by the CBI. The charge sheet indicated the involvement of Mr. Sudhir Behra, Chief Manager of the appellant Bank at Burra Bazar Branch, Calcutta. Acting at the requests of representatives from the Indian clients of the respondent’s constituent, the Chief Manager had induced some officers of the appellant Bank who were In-charge of Foreign Exchange Department to issue tested telex messages of co-acceptance - the defendant/appellant has made out a prima facie case of triable issues in the Suit which needs to be adjudicated. Therefore, the defendant is entitled to grant of unconditional leave to defend the Suit. The appellant/defendant is granted unconditional leave to defend the Summons for Judgment in Summary Suit No. 1586 of 2001 - appeal allowed. - Civil Appeal No. 8194 of 2015, Special Leave Petition (Civil) No. 33549 OF 2014 - - - Dated:- 1-10-2015 - Ranjan Gogoi And N.V. Ramana, JJ. JUDGMENT N.V. RAMANA, Leave gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essage dated 23rd October, 1998 instructed the appellant Bank to deposit the payment against Bills of Exchange totaling US $ 19,31,627.89 into their New York Correspondent Bank viz., Bankers Trust Company on the due date of 27th February, 1999. 6. When the appellant Bank did not remit the amount even after the expiry of due date, the respondent/plaintiff on 9th March, 1999 sent a Telex message to the appellant/defendant to remit the proceeds along with interest @ 9.75% for the late payment. It appears that on the same day, the appellant Bank replied to the respondent denying its liability on the ground that the manner and mode in which the transactions took place was not in ordinary course of business and the acceptance given by its Kolkata Branch at Burra Bazar appears to be in total disregard to the prevailing procedure in Banks. It has also been informed to the respondent that the matter has been entrusted to the Central Bureau of Investigation (CBI). This was followed by various correspondences exchanged between the parties alleging and denying the liability till 31st March, 2001 on which date the respondent filed Summary Suit No. 1586 of 2001 before the High Court. 7. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 23 of the Contract Act. The Head Office of the appellant-Bank has already instructed all its Branches to prohibit even co-acceptance of Bills or purchase/discounting of Bills accepted by other Banks, unless otherwise a specific written confirmation is made by the respective controlling office of the Bank. The telex/fax messages, on which the respondent has been relying on, were not issued with the authority of the appellant Bank. It was purely an act of mischief by certain persons representing the clients of the constituent of the respondent done with connivance of some officers of the appellant-Bank, and the High Court ought to have appreciated this fact. Learned Attorney General drawing our attention to an affidavit filed by the defendant/appellant seeking leave to defend the Summary Suit enumerating the factual aspects of the case, submitted that the learned Single Judge, ignoring the case of the defendant, decreed the Suit making Summons for Judgment absolute. The Division Bench of the High Court also committed a grave error in not appreciating the legal requirements in their true perspective and hence the judgments of the Courts below are liable to be set aside. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for Judgment No. 1305 of 2001. I crave leave to refer to and rely upon the records and proceedings in respect to the said Summons for Judgment as and when produced. 6) The plaintiff thereafter withdrew the said summons for judgment on 24th February, 2003 with the liberty. The plaintiff has failed in taking out the proceedings for amendment of the said summary suit. The plaintiff took out the Chamber Summons No. 576 of 2007 in April 2007, praying of the various amendments to the summary suit. Thus, the said Chamber Summons was taken out after a lapse of four years, when the plaintiff had preferred the summons for judgment in the said suit. This clearly shows that the plaintiff has failed and neglected in prosecuting his rights under the said suit and there is a deliberate delay on the part of the plaintiff in taking out the chamber summons for the amendment of the said plaint. 7) I say that the present suit is not maintainable as a Summary Suit. The present suit is filed by the plaintiff in respect to various Bills of Exchange alleged to have been accepted by the Defendant. I say that the drawee is required to sign his assent on the Bill of Exchange itself and not on any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant has levelled an allegation that drawer and drawee of the Bills had perpetrated fraud on the defendant with the collusion of some officials of the plaintiff Bank and the CBI inquiry on this issue is also pending. Pertinently, the Reserve Bank of India has also been informed on this matter reporting that a fraud had taken place. It is also important to note the strong allegation raised in the affidavit that besides the Suit being barred by limitation, the persons who signed the plaint were not authorized or empowered to file the Suit. 14. Another glaring aspect in the case is that the Division Bench of the High Court in its order categorically mentioned that the appellant/defendant has not actually endorsed its acceptance on the Bills of Exchange. In spite of recording such a finding, the High Court held that the appellant/defendant has agreed to pay the amount due even de hors the Bills of Exchange, which is sufficient to grant a decree in favour of the respondent/plaintiff. 15. As regards the entitlement of a defendant to the grant of leave to defend, the law is well settled long back in the year 1949 in Sm. Kiranmoyee Dassi Vs. Dr. J. Chatterjee, AIR 1949 Cal 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiff s claim. Only in the cases where the defence set up is illusory or sham or practically moonshine, the plaintiff is entitled to leave to sign judgment. 18. Insofar as the question of maintainability of the Suit in question under Order 37, CPC is concerned, this Court has in Neebha Kapoori Vs. Jayantilal Khandwala, 2008 (3) SCC 770 observed that where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The Court before passing a decree is entitled to take into consideration the consequences therefor. The Courts dealing with summary trials should act very carefully taking note of the interests of both the parties. Merely on the ground that the defendant may resort to prolonged litigation by putting forth untenable and frivolous defences, grant of leave to defend cannot be declined. At the same time, the Court must ensure that the defendant raises a real issue and not a sham one. The Court cannot reject the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the substantial revelations of the defendant (appellant) in the affidavit coupled with the views expressed by the Division Bench of the High Court makes it clear that there are certain triable issues for adjudication and the defendant/appellant is entitled to defend the Suit. The appellate side of the High Court ought to have taken into consideration the factual matrix of the case before recording its finding. Taking into consideration the totality of the facts and circumstances of the case, we are of the opinion that the defendant/appellant has made out a prima facie case of triable issues in the Suit which needs to be adjudicated. Therefore, the defendant is entitled to grant of unconditional leave to defend the Suit. 23. Although certain other issues are raised by both the parties, in view of our finding that the defendant/appellant is entitled to leave to defend the Suit, we do not find it necessary to go into other issues at this stage. As regards the contention advanced on behalf of the respondent/plaintiff that the mere denial of liability by the appellant Bank saying that the Officer in charge of the Foreign Exchange Department of the appellant Bank was not authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X
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