9911796707
TMI Blog2001 (4) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff-Company against the receipt thereof and during the course of such transaction defendants purchased cloth worth several lakhs of rupees from the plaintiff-Company and made certain payments against the same. As on 20th January, 1999 a sum of ₹ 560059/- became due and against this payment defendant issued number of cheques. The goods in question against which this sum became due are covered by challans dated 12th June, 1997, 22nd August, 1997, 5th September, 1997, 17th September, 1997, 1st November, 1997, 3rd November,1997, 12th November, 1997, 29th November, 1997, 18th June, 1998 20th november, 1998, 4th December, 1998, 20th January, 1999 and 30th January, 1999. These goods were received by the defendant against receipt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various visits and reminders to the defendant, when the defendant did not make the payment present Suit for recovery was filed seeking a sum of ₹ 4,59,469/- representing these cheques and ₹ 1,19,462/- towards agreed interest @ 24% per annum on this principal amount. 4. The defendant in leave to defend application, has denied any liability though it is admitted that there were dealings between the parties. The grounds on which the leave to defend is prayed for can be summarised as under:- 1. The Suit is not maintainable under order xxxvII of the code of Civil Procedure. It was submitted that the defendant had presented only four cheques, out of the aforesaid 11 cheques for payment. As other cheques were neither presented n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that there was no question of issuance of cheques for consideration. 4. No goods were received through the bill no.14 dated 12.6.97 for ₹ 1,12,956/-, bill number 334 dated 20th January, 1999 for ₹ 18,264/-, bill number 349 dated 30th January, 1999 for 17,213/. 5. Most of the goods were defective and the plaintiff himself settled with the defendant by receiving the cash payment of ₹ 40,000/- in January 1999. The plaintiff never issued any receipt for the amount so received from the defendant. 5. According to the defendant, the Suit was therefore false. 6. In reply to application for leave to defend the plaintiff has contended that four cheques were presented for payment which were returned by the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant raises a friable issue indicating that he has a fair or bona fide or reasonable defense although not a positively good defense the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses 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 a 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 plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave ti defend but in such a case the Court may in its disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the plaintiff made candid admission to the effect that no notice was served on the defendant before filing the present Suit. Why plaintiff would not send notice of dishonour of the cheque when plaintiff could even file proceedings under Section 138 of the Negotiable Instruments Act, or why plaintiff would not write a single letter or serve notice upon the defendant for payment of the alleged outstanding amount before filing the Suit is baffling to the mind. Now let us examine this aspect further in the context of the submissions made by the defendant on the basis of statement of account filed by the plaintiff itself. As per the statement of account the case of the plaintiff is that the cheques were given against supply of goods by spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bank. Admittedly, 7 cheques out of 11 cheques given by the defendant were not presented for payment. Therefore, the Suit under Order xxxvII would not be maintainable. 10. For all these reasons I am the opinion that defendant would be entitled to unconditional leave to defend. This IA is accordingly allowed. Defendant is allowed unconditional leave to defend the Suit. S.No.1802/99 11. Let written statement be filed within four weeks. Replication, if any, within four weeks thereafter. Both the parties may file documents, if any, within eight weeks from today. 12. List before Joint Registrar for admission and denial of documents on 6th September, 2001. 13. List before Court for framing of issues on 18th September, 2001. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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