- (1.) THIS is an appeal from an order dated December 8, 1993 passed by a learned Judge of this Court. The respondent-plaintiff instituted a suit under Order XXXVII of the Code of civil Procedure against the appellants, the suit being on the basis of six several Bills of Exchange, which according to the suit is against the appellant, being the drawer of the said several Bills of Exchange. The respondent plaintiff took out Master's Summons on September 4, 1993 for final judgment and decree for Rs. 29,08,3328. 73 against the appellant defendant No. 1. J. J. Corporation; interest, interim interest and interest on judgment at the rate of 18% per annum on the sum of Rs. 29,08,328 p. According to the respondent-plaintiff, the appellant-defendant No. 2 is the sole-proprietor of appellant-defendant No. 1 The respondent-plaintiff is the payee and holder in due course of six several bills of Exchange-Hundis drawn by the defendants on one M/s. Spin-Mech. Industries, of 20 Old court House Street, Calcutta. The said Bills of Exchange/hundis were payable to and/or to the order of the respondent/plaintiff and were duly accepted by the said M/s. Spin-mech. Industries and delivered to the respondent-plaintiff. It is the further case of the respondent-plaintiff that the said Bills of Exchange were duly presented to the said/ms. Spin Mech. Industries for obtaining payments but the said documents were dishonoured by non-payment. Due notice of dishonour had been given to the appellant-defendants. According to the respondent-plaintiff, the appellant-defendants as drawer of the said Bills of Exchange are liable to compensate the respondent-plaintiff in respect of the said Bills of Echange together with interest.
(2.) THE appellant-defendant Hook out Master's Summons dated 20th september, 1993 for an order that delay, if any, in making the application for leave to defend in suit No. 498 of 1992 (the present suit) be condoned; leave be given to the defendants) to defend the suit No. 498 of 1992 and to file the written statement within such time as this Court may deem fit and proper. The appellant-defendants case is that the said Drafts being the subject matter of the suit were (Brawn under the Letters of Credit issued by the plaintiff bank in favour of the appellant-defendants being the beneficiary of the said Letters off Credits. Before the learned trial Judge the appellant-defendant submitted (that the said documents had been executed by the appellant-defendant in the course of an arrangement between the respondent-plaintiff and M/s. Spin-Mech. Industries under which this Spin mech. Industries were granted overdraft facilities. The said overdraft facilities included a Letter of Credit in favour of the appellant defendants. In the course of the transaction between the appellant-defendants and Spin Mech industries. the appellant defendants supplied the goods to Spin Mech industries and received payment under the Letter of Credit. It was submitted before the learned trial court by the appellant-defendants that the said Letters of Credit were irrevocable and if the respondent-plaintiff was permitted to recover the amount from the appellant-defendants it would amount to revocation of the letter of credit. The learned trial Judge rejected this contention by holding that as would appear from the letter of credit that credit would be made available to the defendants by negotiation against presentation of certain documents and of the defendants' Draft at 90 days' D. A. (Documents against acceptance) from the date of acceptance inclusive of the grace period drawn on Spin Mech Industries. The learned judge, inter alia, held that from a persual of the documents there could not be any doubt that they were indeed Bills of Exchange and the defendants could not give any explanation as to what other function the documents were supposed to fulfil and under Section 37 of the Negotiable instruments Act, 1881 the drawer of the Bill of Excahnge is liable on the same as a principal debtor along with the acceptor.
(3.) THERE were other defences taken by the defendants/appellants before the Trial Court, viz. , that no notice of dishonour was given by the plaintiff-Bank to the defendants and that the said bills of exchange were not stamped and as such the defendants could not be made liable on the document. The learned Trial Judges rejected these two contentions as well. The learned Trial judge, accordingly by the said order under appeal dated december 8, 1993, dismissed the application taken out by the defendant/appellants for leave to defend. Hence arises this appeal.;