TMI Blog1991 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 4. It may be mentioned that defendant No. 1 is a firm, of which defendant No. 2 is a partner and similarly defendant No. 3 is a firm, of which defendant No. 4 is a partner. Incidentally, both defendant No. 2 firm and defendant No. 3 firm are carrying on business from the same premises viz. 11-12, Ashok Chambers, 1st Floor, Broach Street, Bombay. 2. Pursuant to the dishonour of the Bill of Exchange, a Notice dated 8th November, 1989 was given by the plaintiff to both the defendant-firms. On 15th November, 1989, defendant Nos. 1 and 2 wrote to the plaintiff asking for inspection. Similarly, defendants Nos. 3 and 4 asked for inspection by a letter of even date. While doing so, the defendants have acknowledged the receipt of the Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar plea of the same set of defendants has been negatived by this Court. Mr. Jain has also placed reliance on the Division Bench decision of S.P. Bharucha B.N. Srikrishna, JJ., on the question of the presumption of consideration and the burden of proof. He, therefore, concluded that the defendants were not entitled to an un-conditional leave, but must be called upon to deposit the entire amount. 6. On the other hand, Mr. Tulzapurkar and Mr. Avasia, the learned Counsel appearing for the defendants, have contended that the defendants have raised a substantial defence and there are triable issues such as absence of consideration, absence of notice of dishonour, the plea of theft, etc. Mr. Tulzapurkar has placed reliance of the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sham and a bogus plea, nothing short of moonshine. In this behalf, Mr. Jain has also placed reliance on the Judgment delivered by Suresh, J., in Civil Revision Application No. 573 of 1990 where against another plaintiff the same set of defendants had taken identical pleas which have been rejected. In reply to the plea of bar of section 269-SS of the Income Tax Act, this Court has rightly observed that the prohibition under the Act was against taking or accepting and not against giving the amount. In view of this, in my opinion, the plea of bar of section 23 of the Contract Act would not survive for my consideration. 8. On the question of the plaintiff not having offered the Account Books for inspection apart from what Suresh, J., has sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconditional. Similarly, if the defendant raises a triable issue indicating that he has a fair, reasonable and a bona fide defence, although not a positively good defence, he may be entitled to unconditional leave to defend. However, the Supreme Court itself has said that in category of cases where the defendant has no defence, or where the defence set-up is illusory, sham or practically moonshine, then ordinarily the plaintiff would be entitled to leave to sign the judgment and the defendant may not be entitled to leave to defend. In my opinion, the last category of cases cited by the Supreme Court would nearly answer the present cases. The defendants' case about the theft of the blank but signed Bills of Exchanges is totally sham and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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