( 1 ) THIS is an application for leave to defend filed by the defendants in a suit under order XXXVII of the Civil Procedure Code filed by the plaintiff, Shri K. S. Wahi.

( 2 ) THE case of the plaintiff averred in the plaint is as under: that the plaintiff had supplied raw cashew nuts to the defendants in the month of july 1997 by virtue of an agreement dated 6/07/1997 and as per the said agreement the goods were to be supplied from Abidjan (Ivory Coast) Port to Tuti corin (India) Port having a gross weight of 48. 52 MT and net weight 47,875 MT i. e. 64. 5 bags containing 80 kgs. cashew nuts each. According to the agreement the defendants was to make payment of 91 % of the total value of the goods at the time of handing over the delivery order and the balance after taking delivery of the goods. The agreement also provided that if there was any damage beyond 10% as certified by SGS at loading port, the corresponding value of the raw nuts found damaged by sprouting, water damage or lose in weight as certified by the surveyors at landing port should be given by the sellers. On 1/08/1997 the said raw cashew nuts were delivered to the defendants at Tuticorin against invoice dated 6/07/1997 for a sum of Rs. 13,49,069. 00. The plaintiff was given a cheque No. 695001 dated 31 st july 1997 for a sum of Rs. 12,27,994. 00 on account by defendant No. 4. By the letter dated 31/07/1997 the plaintiff was assured that the cheque was by way of an asurance for payment. The plaintiff was assured that the payment will be made by a bank draft within a week of delivery of the goods. The plaintiff believed the defendants and waited. The goods supplied by the plaintiff were shifted to Panaruti. The plaintiff also reached Panaruti to receive payment. On 10/08/1997 the defendants gave a letter to the plaintiff seeking one month s time for making the entire payment of rs. 13,49,069. 00 but the plaintiff did not agree to grant any further time and threatened the defendants with a letter dated 10/08/1997 that he will report the matter to the police. On this a post dated cheque No. 947124 dated 31/08/1997 for a sum of Rupees ten lakhs was issued by the defendant No. 2 from his personal account to silence the plaintiff. The plaintiff was assured by defendant No. 2 that the cheque would be honoured. Defendant No. 2 also issued a letter certifying the good quality and quantity of the goods. The defendant No. 2 then sent a demand draft dated 26/08/1997 drawn on Karur Vyasa Bank, Karol Bagh New Delhi for a sum of Rs. five lakhs to the plaintiff. The plaintiff was further assured that the cheque no. 947124 dated 31/08/1997 for rupees ten lakhs is a guarantee for the balance payment. The plaintiff thereafter got the bank draft of Rs. five lakhs encashed and reminded the defendant about the balance payment due but the defendants did not make the balance payment of Rs. 8,49,069. 00 which was the sum due after adjusting the sum of rupees five lakhs paid by the bank draft dated 26/08/1997. Consequently, the plaintiff. presented the cheque dated 31/08/1997 to his banker, Bank of Maharashtra, Karol Bagh, New Delhi on 4/10/1997 but the cheque was returned on 17/10/1997 with the remarks "insufficient funds". Accordingly a legal notice dated 22nd October 19. 97 was issued to the defendants demanding the payment but without any result. The plaintiff also presented the cheque No. 695001 dated 31/07/1997 for a sum of Rs. 12,27,994 issued by defendant No. 4 and this time also the cheque was dishonoured. The plaintiff again served a legal notice to the defendants demanding the entire balance amount of Rs. 8,49,069. 00 with interest and filed a criminal complaint under Section 138 of Negotiable instrument Act which is pending in the Court of the Metropolitan Magistrate, Delhi where cognizance has been taken and summons issued to the defendant. Since cheque No. 947124 dated 31/08/1997 for Rs. 10 lakhs and cheque No. 695001 dated 31st July for Rs. 12,27,9947- were given by the de

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