STATE BANK OF HYDERABADversusRABO BANK

                   (2015] 11$.C.R.471


             STATE BANK OF HYDERABAD                          A
                             v.
                       RABO BANK
              (Civil Appeal No.8194 of2015)
                                                              B
                   OCTOBER 01, 2015
       [RANJAN GOGOi AND N.V. RAMANA, JJ.]
       Code of Civil Procedure, 1908 - Order 37 r.3 -
Summary procedure - Applicability of - Summary suit by        c
plaintiff-Bank-Against defendant-Bank - Claiming payment
against Bills of Exchange - Denial of liability to make the
payment by the defendant-Bank- Trial court made absolute
the summons for judgment fixing the liability on the
defendant-Bank, without granting leave to defend - Order of D
trial court confirmed by appellate court - On appeal, held:
                             a
Where the defendant raises triable issue or a reasonable
defence, the defendant is entitled to unconditional leave to
defend, unless the defence set up is illusory or sham - In the
present case, the materials on record show that there were E
certain triable issues for adjudication, raised by the defendant
and hence the defendant-Bank was entitled to grant of
unconditional leave to defend the suit.

      Allowing the appeal, the Court                          F

      HELD: 1. Where the applicability of Order 37 CPC
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 G
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
                                                            H
                           471
472       SUPREME COURT REPORTS               [2015] 11 S.C.R.


 A   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 defence on the
     ground of implausibility or inconsistency. Before
 B . recording a finding of granting leave to defend, the Court
     should assess the facts and come to the conclusion that
     if the facts alleged by the defendant in the affidavit are
     established, there would be a good or even a plausible
     defence on those facts. [Para 18] [484-A-E]
 c
         Neebha Kapoori Vs. Jayanti/al Khandwa/a 2008 (3)
         sec 770: 2008(1) SCR 1012 - relied on.
          T. Sukhender Reddy Vs. M. Surender Reddy 1998 (3)
 o        ALO 659 - referred to.

         2. In cases where the defendant has raised a triable
   issue or a reasonable defence, the defendant is entitled
   to unconditional leave to defend. Leave is granted to
 E 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
 F practically moonshine, the plaintiff is entitled to leave to
   sign judgment. [Para 17] [483-F-H]

          Santosh Kumar Vs. Bhai Moo/ Singh AIR 1958 SC 321:
          1958 SCR 1211; Milkhiram (India) (P) Ltd. Vs:
 G        Chaman/al Bros AIR 1965 SC 1698; Mechelec
          Engineers & Manufacturers Vs. Basic Equipment
          Corpn. (1976) 4 SCC 687: 1977 (1) SCR 1060; Suni/
          E(}ferprises &Anr. Vs. SB/ Commercial & International
          Bank Ltd. (1998) 5 SCC 354; Raj Duggal Vs. Ramesh
 H        Kumar Bansal 1991 Suppl.(1) SCC 191 - relied on.
     STATE BANK OF HYDERABAD v. RABO BANK                    473


     Sm. Kiranmoyee Dassi Vs. Dr. J. Chatterjee AIR 1949 A
     Cal 479- referred to.

      3. In the present case, FIR was registered by the
CBI at the instance of Chief Vigilance Officer, of the
appellant-Bank and also the Charge-Sheet was filed by        B
the CBI. The charge-sheet indicated the involvement of
the Chief Manager of the appellant-Bank. 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         C
In-charge of Foreign Exchange Department to issue
tested telex messages of co-acceptance. The charge-
sheet further alleges that these officers were not
authorized to issue such co-acceptances and the
motive behind theirillegal and unauthorized action was       D
to enable the constituent of the respondent to get their
bills discounted by jeopardizing the interests of the
appellant-Bank. It is also on record that the trial of the
said case was at the stage of evidence as on 13th
November, 2014. [Para 21] [485-B-E]                          E

     4. The substantial revelations of the defendant/
appellant in the affidavit coupled with the views
expressed by the Division Bench of the High Court also
makes it clear that there are certain triable issues for F
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 G
circumstances of the case, 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 H
474         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A     defend the suit. The appellant/defendant is granted
      unconditional leave to defend the Summons for
      Judgment. The trial court has to deal all the issues raised
      by the parties, afresh. [Paras 22 and 24] [485-F-H;
      486-A, F]
 B
                           Case Law Reference
      AIR 1949 Cal 479                referred to.      Para 15
      1958 SCR 1211                   relied on.        Para 16
c 1965 SC 1698                        relied on.        Para 16
      1977 (1) SCR 1060               relied on.        Para 16
      (1998) 5 sec 354                relied on.        Para 16
      2008(1) SCR 1012                relied on.        Para 18
D
      1998 (3) ALO 659                referred to.      Para 19
      1991 Suppl.(1) sec 191          relied on.        Para 20
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.
E 8194 of2015

           From the Judgment and Order dated 09.10.2014 of the
      High Court of Judicature at Bombay in Appeal No 415 of 2014
      in Summons for Judgment no 238 of 2008 in Summary Suit
 F    No 1586 of 2001

           Mukul Rohtgi,AG, Shyam Divan, AV. Rangam, Buddy
      A. Ranganadhan, D. V. RaghuVamsyfortheAppellant.

      Rahul Narichania, S~nita Dutt, Pratiksha Avhad, Jyoti
G Mendiratta for the Respondent.

           The Judgment of the Court was delivered by

           N.V. RAMANA, J. 1. Leave granted.
H
       STATE BANK OF HYDERABAD v. RABO BANK                            475
                  [N.V. RAMANA, J.]

       2. This appeal has been directed against the Judgment A
 and Decree dated 9th October, 2014 passed by the Division
 Bench of the High Court of Judicature at Bombay in Appeal
 No. 415 of 2014 arising out of Summons for Judgment No.
 238 of 2008 in Summary Suit No. 1586 of 2001. By the said
 judgment, which is impugned herein, the Division Bench of B
 the High Court dismissed the appeal preferred by the appellant/
 defendant thereby upholding the Judgment of the learned
 Single Judge.

       3. In order to adjudicate the controversy between the           C
 parties, at the outset it is necessary to cull out the facts of the
 case to the extent of deciding the dispute before us.

         4. The respondent/plaintiff is a banking institution located
  in Singapore and on behalf of its constituent namely M/S D
  Gloland (Far East) Pte. Ltd., the respondent/plaintiff carried
  on business dealings with the appellant/defendant. The
  constituent of the respondent is engaged in the business of
  export of Chick Peas and it shipped a consignment to its Indian
  clients, namely, MIS Kothari Global Ltd. and M/S Marudhar E
· Edible Oils Ltd., while handing over three sets of relevant
  documents dated 4.2.1998, 24.2.1998 and 13. 7.1998 to the
  respondent/plaintiff for collecting the payment totaling US $
  8, 19, 199.35 from its Indian clients. The respondent/plaintiff in
  tum forwarded those documents to the appellant/defendant on F
  the condition of releasing them to the Indian clients of its
  constituent against paym·ent. It appears that the appellant/
  defendant did not receive payment from the clients of the
  respondent and hence did not release the documents to them.
                                                                      G
         5. While the things stood so, on 9th September, 1998 the
  respondent/plaintiff sent a fax message to the appellant Bank
  enquiring whether they would accept Bills of Exchange (Drafts)
  payable after 170 days, to which the appellant Bank conveyed
                                                                       H
476         SUPREME COURT REPORTS                    [2015] 11 S.C.R.


A     its acceptance. Accordingly, the respondent sent four Bills of
      Exchange, all dated 9th September, 1998 in favour of the
      appellant Bank for an amount of US$ 8, 19, 198.75. Again on
      21s1 September, 1998, the respondent sent another set of
      documents together with Bills of Exchange to the appellant
 B    Bank for the amount of US$ 11, 12,428.54 for collection from
      the Indian clients of constituent of the respondent. The collection
      tenor was specified as 170 days after the date of Draft (Bill of
      Exchange). The respondent by a Telex message dated 23'd
      October, 1998 instructed the appellant Bank to deposit the
C     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 271hFebruary, 1999.

         6. When the appellant Bank did not remit the amount even
D 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
E 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 Surra Bazar appears to be in
  total disregard to the prevailing procedure in Banks. It has also
F been informed to the respondent that the matter has been
  entrusted to the Central Bureau of lnve~tigation {CBI). This was
  followed by various correspondences exchanged between the
  parties alleging and d.enying the liability till 31st March, 2001
  on which date the respondent filed Summary Suit No. 1586 of
G 2001 before the High Court ..

       7. The learned Triai Judge fixed the liability on the
  appellant/defendant and made absolute the summons for
  judgment awarding interest@ 9.75% p.a. w.e.f. 271hFebruary,
H 1999 i.e. the maturity date of Bills of Exchange, till realization
       STATE BANK OF HYDERABAD v. RABO BANK                       477
                  [N.V. RAMANA, J.]

 of principal amount. Aggrieved thereby, the defendant/appellant A
 filed an intra-Court appeal before the High Court which came
 to be dismissed by the Division Bench upholding the order of
 the learned Single Judge. Not satisfied with the Judgment of
 the High Court, the appellant/defendant filed the appeal on hand
 by way of special leave. On 151h December, 2014, this Court B
 while issuing notice, stayed operation of the impugned order
 of the High Court.                                ·

        8. Mr. Mukul Rohtagi, learned Attorney General for India,
  arguing on behalf of the appellant Bank submitted that the C
  Single Judge as well as the Division Bench of the High Court
  were not justified in fixing the liability upon the appellant Bank.
  In the absence of an opportunity to the appellant Bank to
  defend its case and file written statement in such a case where
  a huge amount of US $19,31,627.89 is involved, the decision D
  of the High Court cannot be appreciated to be a correct one.
  While assailing the judgment of the High Court, learned Attorney
  General submitted that the respondent/plaintiff has no valid
  legal reason to institute the Suit under Order 37, CPC. The
  Suit does not qualify the test of Order 37 1(ii)(b )(i) as there E
  was no specific averment with respect to a "written contract"
  and the averment so pleaded by the plaintiff/respondent is with
  respect to "an agreement". There was no consideration to the
  appellant Bank and merely the telex/fax messages do not F
  constitute a written contract between the parties. The
  instruments in question (Bills of Exchange) did not bear the
  "acceptance" on behalf of the appellant Bank. The provisions
. of Negotiable Instruments Act mandate that the "acceptance"
  shall be given by the drawee/acceptor by signing his assent G
  on the face of the Bill of Exchange. However, in the present
  case, no such endorsement of acceptance is present on behalf
  of the appellant Bank, nor any document was appended giving
  acceptance. Merely the telex/fax messages, purportedly
  issued.on behalf of the appellant Bank, cannot give rise to the H
    478        SUPREME COURT REPORTS                    [2015] 11 S.C.R.


    A claim advanced by the plaintiff/respondent. In such a situation,
      the enforcement is clear violation of public policy envisaged
      under 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
    B 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 nqt issued with the authority of the
    C 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
    0
      defend the Summary Suit enumerating the factual aspects of
/     the case, submitted that th.e learned Single Judge, ignoring
      the case of the defendant, decreed the Suit making Summons
      for Judgment absolute. The Division Bench of the High Court
    E 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. Learned senior counsel appearing for the respondent/
    F plaintiff, on the other hand, supported the Judgment of the
      Courts below and submitted that the respondent/plaintiff has
      made the payment to the exporter MIS Gloland (Far East) Pte.
      Ltd. only after the representation of the appellant/defendantto
      accept the Bills of Exchange. The conduct of the appellant Bank
    G in not fulfilling its obligation, on a bald allegation of fraud made
      by its officials acting beyond their authority, is not in the interest
      of justice. International banking activities operate on implicit
      faith and trust between the parties and escaping from the
      responsibility showing a truncated reason of internal fraud,
    H cannot be sustained. Even the reason of internal fraud as shown
      STATE BANK OF HYDERABAD v. RABO BANK                         479
                 [N.V. RAMANA, J.]

by the appellant Bank is not strongly based, because the tested A
telexes sent by the senior officials of the appellant Bank ensure
their authenticity and leads to the presumption that the
message was sent under the authority of the Bank. The
appellant Bank, in fact, had obtained letters of indemnity on
stamp paper duly signed by the authorized signatory of the B
Indian clients of the respondent's constituent, thereby
indemnifying the appellant Bank in respect of co-acceptance
for the tested telex messages. Learned senior counsel finally
submitted that there is no error apparent in the judgments of
the Courts below and the appeal deserves to be dismissed. C

      10. Having heard learned counsel for the parties, the short
question that falls for our consideration is whether the Courts
below were right in decreeing the Summary ~uit without
granting the relief of leave to defend to the defendant/appellant D
as envisaged under Order 37 Rule 3 C.P.C.?
      · 11. We think that for the adjudication of the said question,
it is appropriate first to examine
                                ,       the affiqavit filed by the .
appellant Bank seeking leave to defend, after receiving E
Summons for Judgment. In the said affidavit, it is categorically
mentioned that the Suit in question is not maintainable to be a
Summary Suit as per law. Paras 5 to 8 of the affidavit filed by
the Branch Manager and the Principal Officer of the Defendant/
appellant, reads thus:                                               F
     5) I saythatthe plaintiff has filed the present suit in March,
     2001 praying for various reliefs as set outtherein. The
     plaintiff thereafter preferred the Summons for Judgment
     in the same in the month of June, 2001 being the
     Summons for Judgment No. 1305 of 2001. I crave leave G
     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      H
480   SUPREME COURT REPORTS                    [2015] 11 S.C.R.


A     judgment on 24 1h 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
 B    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
c     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
D     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 s·ay that the drawee is
      required to sign his assent on the Bill of Exchange itself
      and not on any other part of the instrument/document as
 E    per the provisions of the Negotiable Instrument Act and
      as per the practice followed by Banks. Further, the alleged
      Bills/Suit documents including Bills are not admissible
      as they are not stamped as per the provisions of the
      Stamp Act. If the drawee puts his signature on any other
 F
      paper than the Bill of Exchange, it would not be construed
      as acceptance under the provisions of the Negotiable
      Instruments Act.

      8) In the present case, admittedly the drawee has not
G     affixed his signature, showing the co-acceptance of the
      Bills, on the Bills. Hence the alleged acceptance of the
      Bills of Exchange by the defendant as well as the drawee
      is not proper and the said Bills of Exchange cannot be
      said to be duly accepted by the defendant as well as the
 H
      drawee.
      STATE BANK OF HYDERABAD v. RABO BANK                        481
                 [N.V. RAMANA, J.]

      12.Thus, the appellant/defendant by way of the A
aforementioned affidavit took the plea that the contract between
the parties was not a concluded contract and the Suit in question
is barred by limitation. Prior to the present Suit, the plaintiff/
respondent had earlier in the year 2001 filed another Suit
preferring Summons for Judgment, but withdrew the same in B
the year 2003. Only after taking out the Chamber Summons
seeking various amendments after a lapse of four years in the
year 2007 the plaintiff/respondent preferred the Summons for
Judgment in the Suit in question, with an intention of deliberately C
delaying the process of law. Such a vast delay of about four
years clearly indicates the negligence on the part of the plaintiff
in prosecuting its rights and again initiating the proceedings
after a lapse of four years time is clear abuse of law. Further
plea taken by the defendant/appellant is that the Suit is not at D
all maintainable merely for the reason thc:it there is no signature
giving assent by the drawee on the face of Bills nor there the
signature of the defendant giving co-acceptance. In addition,
the stamping on the Bills was also not done as per the
requirements of law. A clear stand has been taken by the E
defendant/appellant in the affidavit that the signature of the
drawee giving assent should be affixed on the face of the Bill
of Exchange itself under the provisions of the Negotiable
lnstrumentAct and all Banks follow the same principle. Besides,
the Bills are not stamped following the principles of Stamp Act. F

      13. We have further noticed in the affidavit that the
defendant has levelled an allegation that drawer and drawee
of the Bills h.ad perpetrated fraud on the defendant with the
collusion of some officials of the plaintiff Bank and the CBI G
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 H
482         SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A     were not authorized or empowered to file the Suit.

             14. Another glaring aspect in the case is thatthe Division
      Bench of the High Court in its order categorically mentioned
      that the appellanUdefendant has not actually endorsed its
 B    acceptance on the Bills of Exchange. In spite of recording such
      a finding, the High Court held that the appellanUdefendant 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
      respondenUplaintiff.
c
            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 479, in the form of the following propositions:
D
           (1) If the defendant satisfies the Court that he has a good
           defence to the claim on its merits, the plaintiff is not
           entitled to leave to sign the judgment and the defendant
           is entitled to unconditional leave to defend.
 E         (2) If the defendant raised a triable issue indicating that
           he has a fair or bona fide or reasonable defence although
           not a positively good defence the plaintiff is not entitled
           to sign judgment and the defendant is entitled to
           unconditional leave to defend.
 F
           (3) If the defendant discloses such facts as may be
           deemed sufficient to entitle him to defend, that is to say, .
           although the affidavit does not positively and immediately
           made it clear that he has a defence, yet, shows such a
G          stage of facts as leads to the inference that at the trial of
           the action he may be able to establish a defence to the
           plaintiff's claim, the plaintiff is not entitled to judgment
           and the defendant is entitled to leave to defend but in
           such a case the court may in its discretion impose
 H
      STATE BANK OF HYDERABAD v. RASO BANK                          483
                 [N.V. RAMANA, J.]

     conditions as to the time .or mode of trial but not as to      A
     payment into court or furnishing security.

      (4) 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    B
     defendant is not entitled to leave to defend.

     (5) 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, c
     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 leave to the
     defendant on such condition, and thereby show mercy to
     the defendant by enabling_ him to try to prove a defence. D

     16. It is also noticed that the law as enunciated above,
has been followed by the Courts in several cases [See also :
Santosh Kumar Vs. Bhai Moo/ Singh, AIR 1958 SC 321,
Milkhiram Ondia) (P) Ltd. Vs. Chamanlal Bros, AIR 1965 E
SC 1698, Mechelec Engineers & Manufacturers Vs. Basic
Equipment Corpn., (1976) 4 SCC 687 and Sunil
Enterprises & Anr. Vs. SB/ Commercial & International
Bank Ltd. (1998) 5 sec 354).
                                                                    F
        17. An analysis of the above principles makes it clear
that in cases where the defendant has raised a triable issue
or a reasonable defence,· the defendant is entitled to
unconditional leave to defend. Leave is granted to defend even
in cases where the defendant upon disclosing a fact, though G
lacks the defence but makes a positive impression that at the
trial the defence would be established to the plaintiffs 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.                                                            H
484         SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A           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
 B    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
C     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 defence on the ground of
      implausibility or inconsistency. Before recording a finding of
0
      granting leave to defend, the Court should assess the facts
      and come to the conclusion that if the facts alleged by the
      defendant in the affidavit are established, there would be a
      good or even a plausible defence on those facts.
E       19. Although th~ affidavit does not positively and
  immediately make it clear that he had a defence, yet, it shows
  such a state of facts leading to the inference that at the trial of
  the action, the defendant may be able to establish a defence
F to the plaintiff's claim the plaintiff is not entitled to judgment
  and the defendant is entitled to leave to defend 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 [See : T. Sukhender Reddy Vs. M.
G Surender Reddy, 1998 (3) ALO 659].

       20. We are in total agreement with the view taken by this
  Court in Raj Dugqal Vs. Ramesh Kumar Bansal, 1991
  Suppl.(1) SCC 191_that leave to defend the Summons for
H Judgment shall always be granted to the defendant when there
      STATE BANK OF HYDERABAD v. RABO BANK                         485
                 [N.V. RAMANA, J.]

is a triable issue as to the meaning or correctness of the A
documents on which the claim is based or the alleged facts
are of such nature which entitle the defendant to interrogate or
cross-examine the plaintiff or hjs witnesses.

      21. In the case on hand, we have perused the material B
on record including the FIR dated 91h 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, C
Calcutta. Acting at the requests of representatives from the
lnd_ian 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 charge sheet D
further alleges that these officers were not authorized to issue
such co-acceptances and the motive behind their illegal and
unauthorized action was to enable the constituent of the
respondent to get their bills discounted by jeopardizing the
interests of the appellant Bank. It is also on record that the trial E
of the said case was at the stage of evidence as on 131h
November, 2014.

       22. Apart from these, the substantial revelations of the
defendant (appellant) in the affidavit coupled with the views F
expressed by the Division Bench of the High Court makes it
clear that there are certain triable issues for adjudication and
the defendanUappellant 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 G
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, H
486          SUPREME COURT REPORTS               [2015] 11 S.C.R.


A     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 defendanUappellant is
B 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 respondenUplaintiff that the mere
  denial of liability by the appellant Bank saying that the Officer
  in charge of the Fo~eign Exchange Department of the appellant
C Bank was not authorized to give co-acceptance to the Bills
  and thereby alleging a fraud by the officials can net be sustained
  as those are the internal affairs of the defendant Bank for which
  the plaintiff/respondent cannot be penalized and the
  international trade practices and banking regulations have to
D be respected, this Court need not to go in detail in respect of
  these issues when we have come to an irresistible conclusion
  that the appellanUdefendant is entitled to defend the Suit.·
  Hence, we are reluctant to give findings on any of these issues
  which may adversely affect the trial of the Suit.
E
        24. Accordingly, we allow the appeal by setting aside
  the judgment and decree passed by the Courts below. The
  appellanUdefendant is granted unconditional leave to defend
  the Summons for Judgment in Summary Suit No. 1586 of 2001.
F The learned Single Judge of the High Court has to deal all the
  issues raised by the parties afresh and any observation made
  by this Court while dealing with this appeal should not be
  construed as an expression of this Court. There shall, however,
  be no order as to costs:
G
      Kalpana K. Tripathy                             Appeal allowed.