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6. Mr. CL Soni, learned advocate of the plaintiff, submitted that the order granting unconditional leave to defend the suit is an unreasoned order. He also submitted that though the plaintiff has produced High Sea Sales bills issued by the plaintiff to the defendant and High Sea Purchase Letters addressed by the defendant to the Assistant Commissioner of Customs, Custom House, Kandla, declaring that it has purchased the goods in the consignments from the plaintiff, the learned trial Judge has considered only the books of accounts and jumped to the conclusion that since the entries in the ledger produced by the plaintiff have no evidentiary value, there is a triable issue between the parties and, therefore, the defendant is entitled to unconditional leave to defend the suit. Mr. Soni, learned advocate of the plaintiff has also asserted that the defendant has made total denial about the purchase of goods by it from the plaintiff though it has confirmed the purchase of goods from the plaintiff in the letters written to the Assistant Commissioner of Customs. Therefore, according to Mr. Soni, learned advocate of the plaintiff, the learned trial Judge has failed to exercise the jurisdiction vested in him and, therefore, it has resulted in miscarriage of justice and since the learned trial Judge has committed jurisdictional error, this Court can correct it in exercise of the powers conferred under Article 297 of the Constitution. He, therefore, urged to allow the petition by quashing and setting aside the impugned order passed by the learned trial Judge.

7. Per contra, Mr. NalinThakkar, learned advocate of the defendant, has supported the order passed by the learned trial Judge granting unconditional leave to defend the suit. Mr. Thakkar has submitted that the defendant has raised triable issues in the application for leave to defend the suit. Mr. Thakkar also submitted that the suit filed by the plaintiff under Order 37 of the Code is not maintainable. Therefore, the learned trial Judge was right in granting unconditional leave to defend the suit filed by the plaintiff. He, therefore, urged to dismiss the petition.

10. Besides this, the learned trial Judge has also not recorded any categorical finding as to whether the defence raised by the defendant is sham, bogus or moonshine or it is genuine. Without appreciating the fact that no arbitration agreement between the parties is produced on record, the learned trial Judge has observed that if there is any agreement between the parties then the defendant can establish it by producing primary or secondary evidence. Therefore, the learned trial Judge was carried away by the submission advanced by the learned advocate of the defendant that there is an arbitration agreement between the parties without there-being any arbitration agreement on record. Moreover, the order passed by the learned trial Judge is a cryptic and unreasoned one which cannot be sustained in the eye of law. It is settled principle of law that while deciding the application taken out by the plaintiff for summons for judgment and the application filed by defendant seeking unconditional leave to defend the suit, the learned trial Judge has to record a categorical finding as to whether the claim put forward by the plaintiff is genuine or not and whether the defence raised by the defendant is genuine or it is bogus, sham or moonshine. Without recording such a finding, the learned trial Judge has allowed the application seeking unconditional leave to defend the suit in favour of the defendant and thereby granted unconditional leave to defend the suit.

(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.

(c) If the defendant disclose such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiffs claim, the Court may impose conditions at the time of granting leave to defend the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.