M. K. SHARMA ( 1 ) THIS order will dispose of the application filed by the defendants under Order XXXVII Rule 3 (5) read with Section 151 of the Code of Civil Procedure seeking leave to defend the suit instituted by the plaintiff under Order XXXII of the Code of Civil Procedure This application is opposed by the plaintiff and accordingly. I heard the learned counsel appearing for the parties ( 2 ) THE defendants No 1 is a partnership concern of which defendants No 2 to 5 are partners The defendants No 1 carries on the business of civil construction works on contract basis and the said defendants were awarded a civil construction work at Inland Container Depot, Tughlakabad, Delhi by the Container Corporation of India sometime in 1992-93. The defendants, after prior negotiation with the plaintiff under their letter dated 6. . 10. 1993 sub-contracted a part of the work to the plaintiff The plaintiff executed the entire work sub-contracted to it by the defendants and raised two bills - the first bill dated 153 1993 and the second dated 20 3 1993 of which the first bill was for Rs 13. 01. 850/- while the second one was for Rs 7. 27,600/- The defendants, during the currency of the works made payment to the plaintiff for a total sum of Rs 10,50,000 - It is alleged that the defendants through their Accountant acknowledged in writing their liability towards the plaintiff for a sum of Rs. 9,56,720. 00 as on 31. 3 1993 and thereafter the defendants also made payment of yet another instalment of Rs 1,75,000/- vide cheque No 794412 drawn on United Bank of India on 1. 5. 1993 thereby leaving a balance ofrs 7,81,720/ -. It is alleged that the defendants on the said date also acknowledged their liability of Rs 9. 56. 720/- towards the plaintiff and undertook to make payment of the same by 30 3 1993 alongwith interest Since the defendants failed to make the payment of the admitted amount due to the plaintiff, the plaintiff stated that the present suit has been filed under Order XXXVII of the Code of Civil Procedure for the recovery of the aforesaid amount. 720/- towards the plaintiff and undertook to make payment of the same by 30 3 1993 alongwith interest Since the defendants failed to make the payment of the admitted amount due to the plaintiff, the plaintiff stated that the present suit has been filed under Order XXXVII of the Code of Civil Procedure for the recovery of the aforesaid amount. ( 3 ) IN the present application seeking for leave to defend the defendants have averred that Shri S K Singla, who is one of the partners of M/s Gupta Enterprises, present plaintiff, was an employee working with the defendants firm from September 1990 to March 1993 at a monthly salary of Rs 4,000/- Said Shri Singla used to represent the defendants firm before various departments whose works the defendants firm had to execute and in few of the association as an employee of the defendants firm with Shri Singla a sub-contract was awarded to the plaintiff on 6. 1. 1993. of which said Shri Singla was a partner. It is stated that the nature of work and job assigned to the plaintiff was mentioned in the letter dated 6. 1. 1993 and on 7. 1. 1993 said Shri Singla requested the defendants to provide the plaintiff firm with some material required for execution of the sub-contract work Keeping in view the past association as an employee of Shri Singla the defendants agreed to provide the required material with a clear understanding that the price of the said materials supplied by the defendants to the plaintiff would be deducted out of the amount which would become payable to the plaintiff firm on account of execution of the work sub-contracted to the plaintiff. In terms of the aforesaid, during the execution of work by the plaintiff the defendants from time to time supplied materials to the plaintiff on different dates and kept/ maintained a detailed account of the material supplied by the defendants to the plaintiff The total value of the material supplied by the defendants to the plaintiff came to Rs 7,68,623 20 and after adjusting the said amount from the amount payable to the plaintiff a sum of Rs 13,096 80 remained due and payable by the defendants to the plaintiff In respect of the acknowledgement appearing in letter dated 1 5 1995 placed on record by the plaintiffs in the suit and relied upon by the plaintiff in the plaint and also during the course of arguments It is stated by the defendants that the said document is a forged one It is stated that the signature on the said document dated 1 5 1993 although were appended by defendant No 3 but the contents of the same were forged The circumstances under which a blank letterhead signed by defendant No 3 was given to said Shri Singla has been stated in the said application, which according to the defendants was later on converted to the letter dated 1. 5. 1993 by forcing the contents thereof ( 4 ) THE counsel appearing for the plaintiff drew my attention to the various acknowledgements alleged to have been made by defendants in respect of their liabilities equal to the claimed amount in the present suit ( 5 ) ON perusal of the said documents, contained in the documents filed by the plaintiff, I find that in the letter dated 1 5 1993 there is a clear acknowledgement in respect of the balance amount due to the plaintiffs by the defendants amounting to Rs. 7,81,720. 00 The counsel appearing for the defendants however, states that except for the signatures appearing on the said letter. 7,81,720. 00 The counsel appearing for the defendants however, states that except for the signatures appearing on the said letter. which is of defendant No 3 the rest of the contents of the letter are forged The circumstances under which the blank letter-head with the signatures of defendant No 3 came to be issued to said Shri S K Singla, a partner of the plaintiff, has also been stated in the application seeking leave to defend The counsel appearing for the defendants also drew my attention to the statement of accounts of the plaintiff and the defendants filed by the plaintiff in the present suit In the said statement of accounts an entry is shown dated 172 1993 debiting an amount of Rs 5,50,000/- According to the defendants the said cheque issued for an amount of Rs 5,50. 000/- was a post-dated cheque and could not have been encashed on 172 1993. Therefore, the very action of the plaintiff of debiting the said amount in their statement of account on 17 2 1993 establishes that the statement of account of the plaintiff and the statement of accounts alleged to be that of the defendants as filed by the plaintiff cannot be said to be conclusive, as stated by the counsel for the plaintiff and in my opinion, the same gives rise to a triable issue Besides the statement of account of the plaintiff as produced by the plaintiff tallies with that of the defendants in all respects, whereas according to the counsel for the defendants, the date of entry in the statement of accounts of the plaintiff should have been the date when the said cheques were encashed and not when the said cheques were handed over to the plaintiff ( 6 ) UNDER the provisions of Order XXXVII the defendant is entitled to leave to defend on his ability to prove and show that it has a valid defence and triable issues are raised and that its defence is bonafide and not illusory, sham or practically moonshine In M/s. Mechalec Engineers and Manufacturers Vs. M/s Basic Equipment Corporation; reported in AIR 1977 SC 577 the Supreme Court approved the five propositions laid down by the Calcutta High Court in Smt. Kiranmoyee Daasi Vs. Dr. M/s Basic Equipment Corporation; reported in AIR 1977 SC 577 the Supreme Court approved the five propositions laid down by the Calcutta High Court in Smt. Kiranmoyee Daasi Vs. Dr. J. Chatterjee; (1945) 49 Calcutta Weekly Notes 246 at page 253, as the principles applicable to cases under Order XXXVII of the Code of Civil Procedure. The said propositions approved by the Supreme Court provide that in case the defendant is able to satisfy the court that he has a good defence to the claim on the merits or the defendant is able to raise triable issue indicating that he has a fair, bonafide or a reasonable defence or if the defendant discloses such facts as may be deemed sufficient to entitle him to defend then leave to defend should be granted. While laying down the aforesaid propositions the court also held that if the defence raises by the defendant is found to be illusory or sham or practically moonshine then the defendant is not entitled to leave to defend ( 7 ) IN the instant case the plaintiff in his plaint endeavours to make out a claim on the basis of the acknowledgement in the letter issued by the defendant No,3 on 1. 5. 1993. The defendants in their application for leave to defend have admitted the signatures of defendant No. 3 appearing therein but categorically stated that the rest of the contents of the said letter are forged The defendants have also been able to raise a triable issue in respect of the statement of accounts of the plaintiff as also of the defendants produced by the plaintiff in support of its claim ( 8 ) ON consideration of the entire facts and circumstances of the case I am of the considered opinion that the defence raised in the present application gives rise to triable issues and cannot be said to be illusory, sham or practically moonshine Each case has to be considered on its peculiar facts and in the instant case I am satisfied that the defendants have been able to make out a case for grant of leave to defend to them. It was also urged by the learned counsel for the plaintiff that in case this court decides to grant leave to the defendants to defend the suit. it should be conditional. However. It was also urged by the learned counsel for the plaintiff that in case this court decides to grant leave to the defendants to defend the suit. it should be conditional. However. considering the facts and circumstances of the case I do not feel inclined to impose any condition on the defendants for the grant of leave to defend. The leave to defend is therefore, granted unconditionally. ( 9 ) IN the result, the application No 4271/1996 stands allowed The defendants are granted unconditional leave to defend the suit, and are granted 8 weeks time to file the written statement with advance copy to the counsel for the plaintiff to enable him to file replication within 4 weeks thereafter. List this matter before the Joint Registrar on 8. 5. 1997 for admission/denial of documents.