D.K.Seth, J. - (1.) In this appeal, the judgment and decree dated March 26, 1991, passed in Suit No. 297 of 1987 under Chapter XIII-A of the Original Side Rules (OS Rules) is under challenge. It is alleged that a sum of Rs. 20 lakhs was deposited with the bank by the plaintiff for being transmitted to a foreigner's account which was kept in fixed deposit and in respect of which the plaintiff had executed a document of lien. Ultimately, the Reserve Bank of India refused permission to transmit the amount to the foreigner's account. In the circumstances, the plaintiff was entitled to refund of the said amount, which the defendant bank, being the appellant herein, could not retain. In the circumstances, an application under Chapter XIII-A of the OS Rules was taken out by the plaintiff/respondent for a decree on admission through a summary procedure provided therein. The learned Judge, on the oral prayer of the plaintiff, had called for records from the Reserve Bank of India, which were produced. Mr. Bachawat, appearing for the respondent, contended that this was not objected to by the defendant/appellant. Having examined those documents, the Court found that the defendant had no defence, therefore, refused leave to defend and decreed the suit on admission on various grounds to which we shall refer at a latter stage.
(2.) Mr. Hiranmoy Dutt, learned counsel appearing on behalf of the appellant Bank, submits that it is not necessary to make out a good defence. It is only if the defendant is able to make out a case that he has a defence through a triable issue raised, in that event, no decree under Chapter XIII-A could be signed. He relied on the decisions in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation, AIR 1977 SC 577; Mrs. Raj Duggal v. Ramesh Kumar Bansal, AIR 1990 SC 2218 and Sunil Enterprises & Anr. v. SBI Commercial & International Bank Ltd., (1998)5 SCC 354 in support of his contention. Respondent's submission:
(3.) Mr. Bachawat, learned counsel appearing on behalf of the respondent, on the other hand, points out that Rule 6 of Chapter XIII-A of the OS Rules empowers the Court to sign a decree unless the defendant, by affidavit or otherwise is able to satisfy the Court that the defendant has a good defence to the plaintiff's claim on merit or disclose such facts as may be deemed sufficient to entitle him to defend. The leave to defend is not available only on the mere asking. He also relied on Rule 5 to contend that in the process of determining a question under Chapter XIII-A, the Court can call for records and examine witnesses and in this case records were so called for without any objection and were examined. From the materials, he points out that there is nothing to indicate that this process was ever objected to by the defendant. He further contended that the materials that have been disclosed go to show that there was no defence, which could enable the defendant to raise any triable issue. In support of his contention that the question is to be weighed with on the basis of the affidavits and that it is to be decided on the basis of the existing facts as on the date, he relied on the decision in Banque De Paris Et Des Pays-Bas (Suisse) S.A. v. Costa De Naray and Christopher John Walters, (1984)1 Lloyd's Law Reports 21. The question:;