JUDGMENT
J.K. Mehra, J.
(1) These are applications filed by defendants No. 2 and 4 for leave to defend the suit of the plaintiff filed under Order 37, The main ground taken by defendant No. 4 is that he had already ceased to be a partner of defendant No. 1 in the month of May, 1986 and the present suit refers to the transactions subsequent to May, 1986 except the transaction referring to site draft for the amount of U.S. $2398.43 (including freight) and, therefore he is not liable for the transaction in question. A perusal of the plaint, however, discloses a different version of fads alleged. With regard to the payment of the site draft of the aforesaid amount, it is submitted by defendant No. 4 that this amount was included in the amount of Us $7,500.00 receipt whereof has been admitted by the plaintiff company and, therefore, he is no longer liable for the alleged claim in the suit. Another point which defendant No. 4 has taken in the application for leave to defend is that the price for the books as also of the titles which were dispatched by the plaintiff were never settled and the plaintiff had dispatched obsolete books for which there was no order placed on the plaintiff and for that reason also, the defendants were not liable to pay for the same. In my opinion, the aforesaid pleas of defendant No. 4 do raise friable issues.
(2) Defendants No. 1 and 2 have also substantially raised the objections to the effect that no formal order was placed on the plaintiff nor were any prices settled between the parties. It is contended on the their behalf that the site draft is only for Us $ 2398.43, but the suit has been filed for Us $ 38,698,69.00 , which could not have been done. It is further pointed out that a sum equal to Us $7,500.00 had been received by the plaintiff, credit wherefore has not been given to the defendants in the plaint. Therefore, the plaintiff is guilty of concealing material facts from the Court. It is further contented on behalf of the defendants that there was no written agreement for the supply to the alleged titles/books and that since the parties were nol ad-idem, there could be no question of a written contract coming into existence for the alleged titles/books. It is further submitted that defendant No.1 never agreed to any negotiation amount or settlement at Us $ 20,000.00 vide a letter dated 25.03.1987 and there is no written contract existing between the parties. These pleas raised by the defendants No. 1 and 2 also give rise to friable issues However, it is said titles and did not reject those. The effect of this can, however, be considered in the light of evidence which may be lead before Court.
(3) Having regard to all the facts and circumstances referred to hereinabove, it will be in the interest of justice to grant to the defendants leave to defend the suit and they are allowed to defend the suit in terms of the law laid down in the case of M/s. Machalec Engineers and Manufacturers Vs. M/s. Basic Equipment Corporation, , wherein their Lordships of the Supreme Court, while laying down the principles to be followed for considering the question of granting leave to defend, have observed as under :- (c) If the defendant disclosed 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 a defense, yet, shows such state of facts as leads to the inference that at the trial of the action, he may be able to establish a defense to the plaintiffs 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 sccurity”.
(4) In the light of the above discussion, I allow both the applications and grant the defendants leave to defend the suit subject to the condition that the defendants shall file in Court their written statements and the documents in their power and possession within five weeks from today and shall also make a discovery on oath of documents in accordance with law within a further period of two weeks. I.As. are disposed of in the above terms.