TMI Blog2002 (4) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived. We hereby request you to deliver such goods to M/s. (Vasani Bros) Bhavnagar in accordance with out request. 1. To Indemnify you and held harmless in respect of any liability loss or damage or whatsoever nature which you may sustain by reason of delivering the goods of M/s. Vasani Brothers, Bhavnagar in accordance with our request. 2 . To pay you on demand the amount of any loss on which the Matter/agent of the vessel or any other of your services or agents whatsoever may incur as a result of delivering the goods aforesaid. xxx xxx xxx xxx xxx xxx 6. To produce and deliver to you the Bills of lading for the above goods duly endorsed as such as documents shall have arrived. xxx xxx xxx xxx xxx xxx On the said Bond of following notation appears with the stamp of the Appellant Bank and the signature of their Manager: We the undersigned hereby join in the above indemnity and jointly and severally guarantee due performance of the above contract and accept all the formalities expressed therein. Sd/- Stamp and Signature of Bank. 4. The 1st Respondent claim that on the basis of this Bond they issued a Delivery Memo dated 14th June, 1995 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 2 and also with assistance of the then Branch Manager of the said Branch. xxx xxx xxx xxx xxx xxx Without prejudice to the averments made hereinbefore and hereinafter and making no admission of what so ever nature it is submitted that the Bhavnagar (main) Branch had received an inquiry from the negotiating Bank about certain discrepancies noticed in the Bank documents submitted by the beneficiary M/s. Matusi Co., and therefore, they sought the confirmation of the said Branch whether the bill with those discrepancies could be negotiated. As this defendant/opener of the I/C was not accepting the discrepancies, the said negotiating Bank was advised not to negotiate the bills under the L/C. Thought the L/C was established by the defendant No. 1 the negotiating Bank was advised not to negotiate the documents. Therefore, there is no liability arises of this defendant of whatsoever nature. Thus it is to be seen that the Appellant had, amongst other contentions, averred that a fraud had been made on them by the 1st Respondent in collusion with the 2nd Respondent and their Manager. They also averred that they had refused to negotiate L/C as there were discrepancies. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave no defend but in such a case the Court may in its discretion impose condition 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 entitled to leave the 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 secured and give to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. 11 . In the case of Raj Duggal v. Ramesh Kumar Bansal AIR1990SC2218 , it has been held that leave to defend must be declined where the Court is of the opinion that grant of leave would merely enable the defendant to prolong the litigation by rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts: Provided that in respect of the Courts referred to in Clause (b), the High Court may, by notification in the Official Gazette restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time as the circumstances of the case may require, by (sic) notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought upon the operation of this Order as it deems proper. (2) Subject to the provisions of Sub-rule (1), the Order applies to the following classes of suits, namely:- (a) suits upon bill of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,- (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than an penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. It is to be seen that under Sub-rule (2) (iii) of Rule (1) of Order 37 a claim could be made on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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