A defendant is entitled to leave to defend a suit under Order 37 Rule 3(5) if the defence raises a triable issue, even if not a positively good defence. The presumptions under Sections 118, 138, and 139 of the Negotiable Instruments Act are rebuttable and can be overcome by evidence to the contrary.

( 1 ) THIS Regular First Appeal is directed against order, judgment and decree dated 18th September, 1995 passed by the learned Additional District Judge in a suit filed by the respondent-plaintiff on the basis of a cheque, tried under the provisions of Order 37 of the Code of Civil Procedure (for short the Code ). The application for leave to defend filed by the appellant-defendant has been disallowed, leave refused and the suit has been decreed.

( 2 ) BRIEFLY, the facts are that the respondent-plaintiff had filed a suit for recovery of Rs. 27,840. 00 on the basis of a cheque in the sum of Rs. 27. 000. 00 issued by the appellant in its favour. The suit was tried under summary procedure of Order 37 of the Code, summons of suit and for judgment were accordingly served on the defendant and in due course the appellant-defendant filed an application under Order 37, Rule 3 (5) of the Code for leave to appear and defend the said suit on various grounds as pleaded therein. The learned Trial Court vide detailed impugned order and judgment came to the conclusion that the defence sought to be raised by the defendant is frivolous, dishonest, bogus and illusory and the application has no merits and accordingly refused leave to defend and decreed the together with interest @ 12% per annum from. the date of the filing of the suit till realisation.

( 3 ) BEING aggrieved, defendant has come in appeal against the said order, judgment and decree.

( 4 ) LEARNED Counsel for the appellant has contended that the learned Trial Court has acted illegally and has exercised jurisdiction unreasonably and on untenable grounds has rejected the application drawing wrong inferences and conclusions which is not permissible at this stage. The application of the defendant disclosed facts which raised triable issues and if accepted are sufficient to non-suit the plaintiff; and hence the impugned order and judgment are not sustainable. Whereas learned Counsel for the respondent has supported the order and judgment and has contended that as the defence sought to be as raised is not bonafide and is intended to delay the disposal of the suit, no triable issue was raised and the learned Trial Court has rightly come to the conclusion it reached.

( 5 ) THE plaintiff in the plaint as well as in the affidavit filed in support of the application for summons for judgment had alleged that the plaintiff and defendant knew each other as they belong to the same professional community, they had business relations, the plaintiff had sold some computer hardware and software to the defendant and that the defendant in order to discharge the liability (to pay cost) had issued a cheque dated 17. 12. 1990 in the sum of Rs. 27,000. 00 ; the cheque was presented twice on 17. 12. 1990 and again on 27. 12. 1990 but it was returned by defendant s Bank due to insufficient funds and was dishonoured. The plaintiff had sent a notice for payment, to which no reply was given nor any payment made. The defendant in the application for leave to defend has taken the following pleas :

(A) That the plaintiff company is not registered under the Companies Act, nor the plaint and the affidavit have been signed by a duly authorised person on behalf of the plaintiff. (b) That Shri Deepak Jain the representative of the plaintiff company had approached the defendant and persuaded him to purchase one computer system PC XT with associate software for a sum of Rs. 27. 000. 00 ; and got an undated cheque of Rs. 27,000. 00 by giving an assurance that the same will be presented for encashment only after the supply and delivery of the computer. But the said Shri Deepak Jain has filled the undated cheque with a date and presented the same for encashment without supplying the computer, the said cheque is without consideration and as such the suit is not maintainable. The defendant had no liability to discharge by means of this cheque. (e) That the cheque in question was obtained by Shri Deepak Jain fra