The defendant's entitlement to leave to defend in a summary suit under Order XXXVII of the Civil Procedure Code is determined based on the nature of the defense raised and the credibility of the assertions made.

( 1 ) THIS is an application for leave to defend filed by the defendant in a summary suit under Order XXXVII of the Civil Procedure Code.

( 2 ) THE plaint averred as follows:

(A)THE plaintiff, the defendant and Lt. Col. S. M. Chaudhary entered into an agreement for the development and construction of the property No. J 1839, Chittranjan park, New Delhi measuring 340 sq. yds. By virtue of the said agreement the plaintiff and the defendant were to bear the entire cost of the development and construction and the first floor was to be owned by the plaintiff, second floor by the defendant and Lt. Col. Choudhary was entitled to own the basement and the ground floor. The plaintiff invested a sum of Rs. 33 lacs and the construction work was taken control of by the defendant. The plaintiff came to know about the defendant being a land grabber and 4 cases having been registered against him and consequently decided not to continue the aforesaid development and construction work with the defendant and called for the recovery of the said Rs. 33 lacs. The defendant eventually agreed to and than offered to pay only Rs. 30 lacs on 31st January 1999 in full and final settlement of the said amount by giving three cheques. Accordingly a rajinama was entered into on 31st January 1999 acknowledging the liability of the defendant and three cheques given were for Rs. 10 lacs each. At the request of the defendant the said cheques were sent for encashment after a couple of days. Even in a criminal case filed by the plaintiff and in an anticipatory bail application moved therein, the defendant applied for anticipatory bail by submitting that he had offered to pay a sum of Rs. 30 lacs to the plaintiff. Since all the three cheques bounced, the bouncing of the said cheques were communicated to the defendant and at the defendant s request the said cheques were again presented on 10th September 1999 but were dishonoured again. This was done again at the request of the defendant and the cheques were received back with the remarks account closed. In respect of the said bouncing of the said cheques three complaints were pending before different criminal courts. Thereafter the defendant again promised and assured to pay a sum of rs. 30 lacs by a letter dated 20th September 1999 admitting and acknowledging his liability to pay the said amount in 4 instalments starting from 5th October 1999 and ending on 30th October 1999. However, no such payment was made leading to the present summary suit based on aforesaid acknowledgment.

( 3 ) THE defendant had filed an application for leave to defend, IA 1162 of 2002, and the affidavit in support of the application. The contention of the defendant is that no cash was paid by the plaintiff and the sum of rs. 30 lacs was incurred by the plaintiff by way of purchasing material, payment to labour etc. He further stated that the building in question remained sealed in the year 1996-97 and was demolished in the year 1996-99 and, therefore, the whole investment made by the plaintiff nd the defendant went in vain. The total sum invested was Rs. 1. 18 crores and odd and out of which rs. 30 lacs were invested by the plaintiff and the remaining by the defendant. It is further submitted that the second floor of the building was disposed of with the consent of the plaintiff to Balvinder Singh and M/s sarin Trading Co. for a sum of Rs. 20 lacs. Out of which 10 lacs were taken by the plaintiff and now only Rs. 20 lacs remained invested by the plaintiff. Since the first floor of the building could fetch only Rs. 50 lacs which also could not be sold because of the rumour in the market that the building had twice been sealed and demolished by the Corporation. There is thus a loss of rs. 40 lacs which the plaintiff is liable to share with the defendant. The plaintiff has been given opportunities to sell out the first floor but the plaintiff has threatened the defendant for extorting money by various means and civil and criminal pr