# MECHELEC ENGINEERS AND MANUFACTURcRS v. M/S. BASIC EQUIPMENT CORPORATION

- **Citation:** [1977] 1 S.C.R. 1060
- **Court:** Supreme Court of India
- **Decided:** 1976-11-01
- **Case number:** Civil Appeal No. 508 of 1976
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mechelec-engineers-and-manufacturcrs-v-m-s-basic-equipment-corporation-6890
- **Pages:** 5

## Headnote

Civil Procedure Code, S. 115-Jurisdiction of High Court to interfere with
the Trial Court's discretionary order, when exercisable.
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The appellant issued the respondent a cheque which was dishonoured.
The
respondent alleged•that the cheque• was the consideration for goods supplied. The
appellant admitted issuing the cheque but denied by privity of
contra~. The
respondent filed a suit under order 37 C.P.C., and the appellant applied for the
required leave to defend, which was granted by the trial Court unconditionally.
On revision under section 115 C.P.C., the High Court held that triable· issues
arose for adjudication,, but, it considered the defence to be dishonest. If allowed
the revision petition and gave conditional leave to defend on the ground that the
defences were not bona fide.
Allowing the appeal, the Court
HELD : It is only in cases where the defence is patently dishonest or so
unreasonable that it could not reasonably be expected to s<ucceed that the exercise of discretion by the Trial Court to grant leave
unconditionally
may
be
questioned.
Jn other cases, it is not fair to pronounce a categorical opinion on
such a matter before the evidence of the partie~ is taken so that its effects could
be examined.
High Court's interference under sec. 115 C.P.C. with the correct
exercise of its discretion by the trial Court was patently erroneous. [I 062 E-H J
Santo.1·h Kumar v. Bhai Moo/ Singh [1958] S.C.R. 1211 at 1215, Jacobs v.
Booth's Distillery Co. [1901] 85 LT. 262 followed.
Smt. Kira11moyee Dassi and another v. Dr. J. Clwttcrjn• (49 C.W.N. 246 at
253) distinguished.
M. L. Sethi v. R. P. Kapur [1973]. (!) S.C.R. 697; The Mana;:ing
Director
(MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & A nr. v. Ajit Prasad
Tarway, J\1a11ager (Purchase and Stores). Hindustan A erona11tics Ltd. Balanagar, Hyderabad (AIR 1973 SC 76); D.L.F. Housing & Co11str11c1io11 Co. Pvt.
Ltd., New Delhi v. Sarup Sin{!/1 & Ors. [1970] 2 S.C.R.
368; and
Milkhiram
;F
(India) (Pl Ltd. and Ors. v. Chamanlal Bros. (AIR 1965 SC 1998) referred
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to.

## Text

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1060
MECHELEC ENGINEERS AND MANUFACTURcRS
v.
M/S. BASIC EQUIPMENT CORPORATION
November 1, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Civil Procedure Code, S. 115-Jurisdiction of High Court to interfere with
the Trial Court's discretionary order, when exercisable.
••
The appellant issued the respondent a cheque which was dishonoured.
The
respondent alleged•that the cheque• was the consideration for goods supplied. The
appellant admitted issuing the cheque but denied by privity of
contra~. The
respondent filed a suit under order 37 C.P.C., and the appellant applied for the
required leave to defend, which was granted by the trial Court unconditionally.
On revision under section 115 C.P.C., the High Court held that triable· issues
arose for adjudication,, but, it considered the defence to be dishonest. If allowed
the revision petition and gave conditional leave to defend on the ground that the
defences were not bona fide.
Allowing the appeal, the Court
HELD : It is only in cases where the defence is patently dishonest or so
unreasonable that it could not reasonably be expected to s<ucceed that the exercise of discretion by the Trial Court to grant leave
unconditionally
may
be
questioned.
Jn other cases, it is not fair to pronounce a categorical opinion on
such a matter before the evidence of the partie~ is taken so that its effects could
be examined.
High Court's interference under sec. 115 C.P.C. with the correct
exercise of its discretion by the trial Court was patently erroneous. [I 062 E-H J
Santo.1·h Kumar v. Bhai Moo/ Singh [1958] S.C.R. 1211 at 1215, Jacobs v.
Booth's Distillery Co. [1901] 85 LT. 262 followed.
Smt. Kira11moyee Dassi and another v. Dr. J. Clwttcrjn• (49 C.W.N. 246 at
253) distinguished.
M. L. Sethi v. R. P. Kapur [1973]. (!) S.C.R. 697; The Mana;:ing
Director
(MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & A nr. v. Ajit Prasad
Tarway, J\1a11ager (Purchase and Stores). Hindustan A erona11tics Ltd. Balanagar, Hyderabad (AIR 1973 SC 76); D.L.F. Housing & Co11str11c1io11 Co. Pvt.
Ltd., New Delhi v. Sarup Sin{!/1 & Ors. [1970] 2 S.C.R.
368; and
Milkhiram
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(India) (Pl Ltd. and Ors. v. Chamanlal Bros. (AIR 1965 SC 1998) referred
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to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 508 of 1976.
(Appeal by Special Leave from the Jud~ment and
Order dated
27-10-1975 of the Delhi High Court in Civil Revision No. 115/75).
S. N. A ndley, Uma Dutta and T. C. Sharma, fof the appellant.
K. C. Agarwala and M. M. L. Srivastava, for the respondent.
The Judgment of the Court was delivered by
BEG. J. The plaintiff-respondent alleged to be a registered
partnership firm filed a suit on 25th April, 1974, through Smt.
Pushpa
Mittal, shown as one of its partners, for the recovery of Rs. 21 ,265.28
as principal and Rs. 7655/-, as interest at 12% per annum, according
to law and Mercantile usage, on the strength of a cheque drawn by the
defendant on 12th May, 1971, on the State Bank of India, which, on
presentation, was dishonoured. ·The plaintiff alleged that the cheque
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MECHELEC ENG. V. BASIC EQ. CORP. (Beg, J.)
1061
was give!! as price of goods supplied.
The defendant-appellant firm
admitted the issue of the cheque by its Managing partner, but, it denied
any privity of contract with the plaintiff firm. The defendant-appellant
had its own version as to the reasons and purposes for
which the
cheque was drawn.
The suit was instituted under the provisions of Order 3 7 Civil Procedure Code so that the defendant-appellant had to apply for
leave
under Order 37, Rule 2, of the Code to defend. This leave was granted
unconditionally by the Tria~ Court after a perusal of the cases of the
t~ sides.
Order 37, Rule 3, Civil Procedure Code Jays down :
"(1) The Court shall, upon application by the defendant,
~ive leave to appear and to defend the suit,. upon affidavits
which disclose such facts as would make it incumbent on the
holder to prove consideration, or such other facts
as
the
Court may deem sufficient to support the application.
(2) Leave to defend may be given
unconditionally or
subject to such terms as to payment into Court, giving
security, framing and recording issues or otherwise as
the
Court thinks fit".
A learned Judge of the High Court of Delhi had on a revision
application under Section 11 5 Civil Procedure Code interfered with
the order of the Additional District Judge of Delhi granting unconditiollftl leave, after setting out not less than seven questions on which
the parties were at issue. The learned Judge had, after discussing the
cases of the two sides and holding that triable issues arose for adjudication, nevertheless, concluded that the defences were not bona fide.
He, therefore, ordered :
"For these reasons I would allow the revision petition and
set aside the order of the trial Court.
Instead I
would
grant leave to the defendant on their paying into Court the
amount of Rs. 21,265.28 together with interest at the rate of
6 per cent per annum from the date of suit till payment and
costs of the suit (only court fee amount at this stage and not
the lawyer's fee). The amount will be deposited within two
months. There wm be no order as to costs of this revision".
The only ql!estion; which arises before us in this appeal by special
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leave :
Could the High Court interfere, in
exercise of its powers
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under section 115, Civil Procedure Code, with the discretion of the
Additional District Judge, in granting unconditional leave to defend. to
the defendant-appellant upon grounds which even a perusal of
the
order of the High Court shows to be reasonable ?
Santosh Kumar v. Bhai Mool Sin1?h(1), was a case where a cheque,
the execution of which was admitted by the defendant, had been dishonoured. The defendant had. set up his defences for refusal to pay.
(l) [1958] SCR 1211-1215.
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1062
SUPREME COURT REPORTS
( 1977] 1 S.C.R.
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This Court noticed the case of Jacobs v.
Booth's Distil/en;, Company('), where it was held that, whenever a defence raises a
really
triable issue, leave must be given. Other cases too were noticed there
to show that this leave must be given unconditionally where the defence
could not be shown to be dishonest in limine.
This Court observed
there (at p. 1215) :
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"The learned Counsel for the plaintiff-respondent relied
on Gopala Rao v. Subba Rao (AIR 1936 Mad. 246,
Manohar Lal v. Nanhe Mal (AIR 1938 Lah.
548), and
Shib Karan Das v. Mohammed Sadiq (AIR 1936 Lah. 584).
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All that we need say about them is that if the Court is of
opinion that the defence is not bona fide, the.n it can impose
conditions and is not tied down to refusing leave to defend. •
We agree with Varadachariar J. in the Madras case that the
Court has this third course open to it in a suitable case. But,
it cannot reach the conclusion that the defence is not bona
fide arbitrarily. It is as much bound by judicial rules and
judicial procedure in reaching a conclusion of this kind as in
any other matter".
On general principles, relating to the exercise of jurisdiction of
High Courts under section 115, Oivil Procedure Code, several cases
were cited before us by Mr. Andlcy: M. L. Sethi v. R. P. Kapur(2);
The Managing Director (MIG) Hindustan Aeronautics Ltd.
Balanagar, Hyderabad & Anr. v. Ajit Prasad Tarway, Manager, (Purchase & Stores), Hindustan Aeronautics Ltd.,
Balanagar,
HydcraE
bad(3); D. L. F. Housing & Construction Co. Pvt. Ltd. New Delhi v.
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Sarup Singh & Ors.( 4 ); Milkhiram (India) Pvt. Ltd. & Ors. v. Chamanlal Bros.(")
We need not dilate on the well established principles repeatedly
laid down by this Court which govern jurisdiction of the High Courts
under section 115 C.P.C. We think that these principles were ignored
by the learned Judge of the High Court in interfering with the discretionary order after a very detailed discussion of the facts of the case
by the learned Judge of the High Court who had differred on a pure
question of fact-whether the defences could be honest and bona fide.
Any decision on such. a question, even before"evidence has been led
by the two sides, is generally hazardous.
We do not ihink that it is
fair to pronounce a categorical opinion on such a matter before the
evidence of the parties is taken so that its effects could be examined.
In the case before us, the defendant had denied, inter alia, liability to
pay anything to the plaintiff for an alleged supply of goods. It is only
in cases where the defence is patently dishonest or so unreasonable
that it could not reasonably be expected to succeed that the exercise
of discretion by the Trial Court to grant leave unconditionally may be
(I) (1901] 85 L.T. 262.
(3) . A IR 1973. SC 76.
(5) AIR 1965 SC 1698.
(2) [1973] 1 S.C.R. 697.
(4) (1970] (2) SCR 368.
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MECHELEC ENG. v. BASIC EQ. CORP. (Beg, J.)
1063
.questioned. · In the judgment of the High Court we are unable to find,
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a ground' !if interference covered by Section 115 C.P.C.
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In Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee('), Das. J.,
after a comprehensive review of authorities on, the subject: stated the
principles applicable to cases covered by order 17 C.P.C. m the form
of the following propositions (at p. 253) :
"(a) If the Defendant satisfies the Court that he has a
good defence to the claim on its merits the plaintiff !s not. entitled to leave to sign judgment and the Defendant 1s entitled
• • to unconditional leave to defend.
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(b) If the Defendant raises 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.
( c) H tht:'1 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
make it clear that he has ai defence, yet, shews such a state
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 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 a 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" .
The case before us certainly does not fall within the class ( e) set
-out ~~ove. It is o_nly in that cl~ss of case ).!.lat an impo~ition of the
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-cond1tion ·to deposit an amount m Court before proceeding further is
justifiable.
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49 C.W.N. 246, 253.
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1064
SUPREME COURT REPORTS
(1977] 1 S.C.R.
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Consequently, we set aside the judgment and order of the High
Court and restore that of the Additional District Judge. Tb parties
will bear their own costs.
M.R.
Appeal allowed.
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