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TMI Blog2019 (7) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... rent writings. Significantly on 29.10.2015, in the prosecution instituted by the respondent under the Act, the court required the respondent to file certain additional documents because the appellant denied the existence of any legal liability for any sum due. It is only thereafter that the Summary Suit was instituted on 24.11.2015. The prosecution under the Act was subsequently unconditionally withdrawn on 14.12.2015. These facts are not in dispute and are clearly discernible from the records. This coupled with the specific contention of the appellant, not denied by the respondent, that it had returned defective goods and paid the balance dues of ₹ 5,00,000/, we find the conclusion to grant leave to defend as perfectly justified - But the defence raised by the appellant in the aforesaid background was certainly not a sham or a moonshine much less frivolous or vexatious and neither can it be called improbable. The fact that there may have been commercial relations between the parties was the ground for the institution of the summary suit but could not per se be the justification for grant of conditional leave sans proper consideration of the defence from the materials on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant between 09.05.2010 to 03.06.2011. Acknowledging some payments they claimed outstanding dues of ₹ 34,24,633/. Likewise, for supplies between 01.04.2010 to 10.03.2011 they claimed dues of ₹ 1,88,377/. A notice was given to the appellant under Section 138(b) of the Act after the cheques dated 01.03.2014 and 01.03.2014 were dishonored, as the account was blocked. The respondent then instituted a prosecution under Section 138 read with Section 142 of the Act lodged for ₹ 34,24,633/on 30.04.2014 with regard to the former instrument and on 01.08.2014 with regard to the latter instrument. Different dates have been mentioned in different documents placed before us. 6. While the prosecution under the Act was pending, the respondent instituted the present summary suit on 24.11.2015 for a cumulative sum of ₹ 36,13,410/, being the total amount of two dishonored instruments, with an additional claim for ₹ 28,05,199/as interest at the rate of 18% per annum amounting to a total of ₹ 64,18,609/. The Suit expressly referred to the pendency of the prosecution under the Act. 7. In Summons for Judgment No. 105 of 2016 dated 16.03.2016, in the summary s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgement, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. XXXXX 11. In a summary suit, if the defendant discloses such facts of a prima facie fair and reasonable defence, the court may grant unconditional leave to defend. This naturally concerns the subjective satisfaction of the court on basis of the materials that may be place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken to see that such triable issues are not shut out by unduly severe orders as to deposit or security. 17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. 17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. 14. In our opinion, both the Civil Judge and the High Court have posed unto themselves the wrong question and have therefore misdirected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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