IMPORTANT POINT
“Leave to defend” cannot be claimed as a matter right even if the matter is related to the party’s legal representatives.

Rajiv Sahai Endlaw, J.—Does a cheque presented for payment to the Bank after the death of the drawer and returned unpaid for the reason of death, ceases to be a cheque for a suit under Order 37, CPC to be maintainable thereon. This question inter alia arises for consideration in this application for leave to defendant.

2. The three plaintiffs instituted the suit under Order 37 of the CPC for recovery of the total principal sum of Rs. 22,65,000/- together with pre-institution interest at 18% per annum amounting to Rs. 71,720/-, total Rs. 23,36,721/- and further together with pendente lite and future interest at 18% per annum against the three defendants on the basis of three dishonoured cheques. The plaintiff Nos.1 and 2 are pleaded to be the sons of the plaintiff No. 3. It is the case in the plaint (i) that the plaintiffs were having friendly relations with Shri Anil Kumar Malik the deceased husband of the defendant No.1 and father of the minor defendant Nos. 2 and 3; (ii) that the said Shri Anil Kumar Malik was working as Development Officer with LIC and had got agency of LIC in the name of the wife of the plaintiff No. 2 also; (iii) that during the long relationship of twenty years between the parties both were helping each other financially as and when need arose; (iv) that the deceased Anil Kumar Malik owed an amount of Rs. 8,00,000/- to the plaintiff No. 3 against which he had issued a cheque; (v) that Sh. Anil Kumar Malik was in need of money and had approached plaintiff Nos.1 and 2 to arrange money; (vi) plaintiff No.1 had arranged a sum of Rs. 8,50,000/- and paid the same to the deceased Anil Kumar Malik against which he issued a cheque for the said amount in favour of the plaintiff No.1; (vii) plaintiff No.2 paid a sum of Rs. 6,15,000/- to the deceased Anil Kumar Malik and against which the deceased issued a post dated cheque for Rs.6,15,000/- in the name of the plaintiff No.2; (viii) that all the said amounts were paid by the plaintiffs to the deceased by way of friendly loan; (ix) that the deceased used to make entries in the record of the amount received from the plaintiffs in the name of the plaintiff No.1 only; (x) Shri Anil Kumar Malik expired untimely on 1st February, 2007 in a train accident; (xi) the plaintiffs presented their respective cheques for encashment after the demise of Sh. Anil Kumar Malik on or about 6th February, 2007 and all the said cheques were returned dishonoured with the remarks “withdrawal stopped owing to death”; (xii) that the plaintiff approached defendant No.1 being the widow of Sh. Anil Kumar Malik, she though admitted the monies owed to the plaintiffs had been non-committal and evasive and did not make the payment in spite of repeated reminders; (xiii) that the defendants being the legal heirs of Sh. Anil Kumar Malik who owed monies to the plaintiffs are liable to re-pay the monies to the plaintiffs along with interest; (xiv) that a legal notice dated 10th March, 2007 was issued which was avoided by the defendant No.1.

3. The defendant No.1 for herself and for her minor children defendant Nos. 2 and 3 has sought leave to defend on the grounds (i) of mis-joinder of plaintiffs and causes of action; it is averred that the transactions pleaded with each of the plaintiffs being separate, they are not entitled to join in a single suit; (ii) that the suit under Order 37 is not maintainable against the defendants who are neither authors of the cheques nor have issued the cheques on the basis whereof the suit has been filed, that a suit on the basis of an instrument can be filed under Order 37 of the CPC only against the person issuing the instruments; (iii) that the plaintiffs have not given any details as to when and in what manner each of the plaintiffs had advanced monies to Sh. Anil Kumar Malik and thus there was nothing to show that the cheques had been issued towards discharge of any alleged loan; (iv) the signatures on the cheques were admitted to be that of Sh. Anil Kumar Malik