A defendant is not entitled to ask for leave to defend because he had a counter claim.

( 1 ) THIS revision petition is directed against the order dated 6. 8. 1992 passed by the learned Addl. District Judge, Delhi, in Suit no. 426/91.

( 2 ) BRIEF facts necessary to dispose of this petition are recapitulated as under:-

( 3 ) THE petitioner who was plaintiff before the trial court filed a suit under order 37 Civil Procedure Code for recovery of Rs. 26,682/50. The respondent herein who was defendant in the trial court took a loan of Rs. 17,000. 00 in cash from the plaintiff on 28. 7. 88 by executing money receipt and and ageement and promised to pay the said amount in four quarterly instalments of Rs. 4250. 00 w. e. f. 28. 10. 88.

( 4 ) THE defendant also issued post-dated cheques in the State Bank of India dated 28. 10. 88, 21. 1. 1989, 21. 4. 89 and 21. 7. 89 respectively. All these four cheques were dishonoured and returned with the remarks "referred to Drawer". On receipt of these dishonoured cheques, legal notices were sent by the plaintiff calling upon the defendant to make the payment. The defendant failed to repay the loan amount, despite three legal notices. Hence, the plaintiff was compelled to file a suit for recovery of the said amount.

( 5 ) THE summons in the prescribed form under order 37 were issued against the defendant and he was served on 24. 2. 92. The defendant put his appearance on 27. 2. 92. Thereafter the defendant was served with summons before judgment and he filed the leave to defend application under order 37 Rule 3 (5) of the Code of Civil Procedure on 5. 5. 1992.

( 6 ) THE defendant sought leave to defend primarily on two grounds. Firstly, the defendant raised the ground that the plaintiff s father entered into an agreement to sell in respect of property bearing no. H-1,2nd Floor, NDSE-I, with the defendant. At that time, the sum of Rs. 81,000. 00 was paid besides other payments. The cheques in question were issued as collateral securities of the sale deed. But the plaintiff with mala fide motive presented the cheques for encashment.

( 7 ) ACCORDING to the defendant, the plaintiff s suit was barred by limitation and he was also entitled for leave to defend on this ground also.

( 8 ) A reply to this application was filed by the plaintiff in which he repudiated the stand taken by the defendant. The plaintiff denied the transaction and stated that the present dispute has nothing to do with the father of the plaintiff in any manner. The father of the plaintiff has no concern with the money receipts and agreement as it was executed exclusively in favour of the plaintiff and the issue of four cheques as per the agreement. It is further denied that the plaintiff has ever told the defendant that the said cheques were misplaced. As a matter of fact, the defendant never demanded return of the cheques. In reply, it is denied that the suit is barred by limitation.

( 9 ) THE defendant has not submitted a copy of the alleged agreement to sell in respect of the aforesaid property. On the contrary, the plaintiff has contended that there is no connection between the transaction held by his father with the receipt and agreement in question. The learned Additional District Judge after close scrutiny of documents, filed on record along with the affidavit filed by the parties, and the money receipts dated 8. 7. 89 arrived at conclusion that the document has no connection whatsoever with the alleged transaction. The learned Additional District Judge on the basis of documents and pleadings found that the defendant has borrowed Rs. 17,000. 00 and agreed to pay the same to the plaintiff in four instalments. The father of the plaintiff has not come in the picture in this transaction. Therefore, there is no question of any collateral security through these four cheques. The transaction in question is an independent transaction and has nothing to do with the alleged agreement to sell. The trial court also came to the conclusion that in case there is an agreement for collateral securities, then the d