The defendant's right to unconditional leave to defend and the non-maintainability of the suit under Order XXXVII due to non-presentation of several cheques for payment.

( 1 ) PLAINTIFF has filed the Suit for recovery of rs. 5,78,931. 00 under Order XXXVII of the Code of Civil procedure. It is mentioned that the Suit is based on cheques given by the defendants to the plaintiff. Some of these cheques on presentation were dishonoured and some of the cheques were not presented at all. On summons of Judgment having served upon the defendant, the defendant. moved this IA seeking unconditional leave to defend.

( 2 ) IN the Suit it is mentioned that defendant who is the sole proprietor of Supriya Fashion used purchase the fabrics from the plaintiff-Company against transaction defendants purchased cloth worth several lakhs of rupees from the plaintiff-Company and made certain payments against the same. As on 20/1/1999 a sum of Rs. 560059. 00 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 12/6/1997, 20/6/1997. 22/8/1997, 5/9/1997. 17/9/1997, 1/11/1997, 3/11/1997, 12/11/1997, 29/11/1997, 18/6/1998, 20/11/1998, 4/12/1998, 20/11/1999 and 30/1/1999. These goods were received by the defendant against receipt thereof and to cover up this liability the defendant issued the following cheques:- s. No. CHEQUE NO. DATED amount (in Rp; - ) 1. 503253 05/6/98 40,000 2. 503254 10/6/98 45,000 3. 503830 15/6/98 48,144 4. 503831 15/6/98 40. 000 5. 503832 26/6/98 42,987 6. 503833 25/6/98 42,000 7. 503834 30/6/98 51,338 8. 503835 30/6/98 50,000 9. 503836 10/7/98 30, 000 10. 503837 10/7/98 37,000 11. 503838 10/7/98 33,000 TOTAL : 4,59,469 (All drawn on Indian Bank, Janakpuri Branch/new Delhi.)

( 3 ) HOWEVER when these cheques were presented for encashment, the same were returned unpaid to the plaintiff. Inspite of 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 Rs. 4,59,469. 00 representing these cheques and rs. l,19,462. 00 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 nor dishonoured suit could not be filed on- the basis of these cheques under Order XXXVII of the Code of. Civil Procedure. Reliance was placed on Suri and Suri private Limited versus Ram Swarup Arora and Company reported in Vol. 24 (83) DLT (SN) 3 in support of this contention. 2. Suit for claiming interest was also not maintainable under the provisions of Order XXXVI I of the Code of Civil Procedure more particularly when there was no clause for payment of interest in the agreement/contract between the parties nor was it mentioned in the bills. 3. On merits ,it was submitted that the cheques in question were without consideration. The defendant had given post-dated 11 cheques but no goods were supplied against these cheques. This would be clear from the fact that cheques related to the period 5/6/1998 to 10/6/1998 whereas as per the own statement of account of the plaintiff the dealing started on 12/6/1997 and the last transaction was on 30/1/1998. A perusal of the statement of account would show that after 5/6/1998 the plaintiff received the payment of Rs. 45,000. 00 on 17/6/1998, Rs. 50,000. 00 on 19/11/1998, rs. 30,000. 00 on 3/12/1998. These payments were made by cheques drawn on Bank of Madura Limited. The statement of account would also reveal that a sum of rs,l3,700. 00 on 5/12/1998, Rs. 18,500. 00 on 15/1/1999 and Rs. 21,500. 00 on 20/1/1999 was given in cash. This clearly indicates that there waft no question of issuance of cheques for consideration. 4. No g