BADAR DURREZ AHMED, J.

( 1 ) THIS is an application filed under Order XXXVII Rule 3 (5) of the code of Civil Procedure, 1908 (hereinafter referred to as `the CPC ) on behalf of defendants No. 1 and 2 seeking leave to defend. The plaintiff had filed this suit under Order XXXVII Rule 1 based upon four cheques which had been issued by the defendant No. 2 in favour of the plaintiff. The averments contained in the plaint disclose that the plaintiff is engaged in the Import and Export of precious metals. The defendants No. 1 and 2 are in the jewellery business. It is everred that the plaintiff and the said defendants have had dealings for some time and they have a running account between them. Defendant Nos. 3 and 4 were directed to be deleted from the array of parties by an order of this Court on 14. 11. 2005. The reason being that the defendant No. 1 is not a partnership firm as alleged in the plaint but a proprietorship concern of which the defendant no. 2 is the sole proprietor.

( 2 ) IT is the plaintiff s case that the defendant Nos. 1 and 2 placed an order upon the plaintiff for supply of gold bars totaling 700 tolas. According to the plaintiff, these 700 tolas of gold bars were supplied to the defendants No. 1 and 2 in terms of their Bill No. MDO/gold/1426/1999-2000 dated 28. 09. 1999 and Bill No. MDO/gold/1427/1999-2000 dated 28. 09. 1999. The first bill was in respect of 500 tolas of gold and the amount of the bill was rs. 26,05,738/ -. The second bill was in respect of two sets of 100 tolas of gold each for a total amount of Rs. 10,47,310/- (Rs. 5,24,180/- for one lot of 100 tolas and Rs. 5,23,130/- for the other lot of 100 tolas. ). In respect of the said transaction some additional expenses were also charged for amounting to rs. 350/- only. Upon receipt of the said gold the defendants and, in particular, defendant No. 2, issued four cheques all dated 28. 09. 1999 drawn on Central Bank of India, Chandni Chowk, New Delhi. The cheque numbers and the amounts are as under:-

S. No.

Cheque No.

Amount

1.

793865

26,05,738/-

2.

793866

5,24,180/-

3.

793867

5,23,130/-

4.

793877

350/-

Total:

36,53,398/-

( 3 ) FROM the above table it becomes clear that the four cheques issued by the said defendants were for a total amount of Rs. 36,53,398/ -. The plaintiff presented these cheques to its bankers. However, all these cheques were returned by the bank to the plaintiff with the remark ?payments stopped by drawer? vide the Bank Memo dated 01. 10. 1999. The present suit is based upon these four cheques. The plaintiff has claimed a sum of Rs. 39,30,856/- on account of recovery of the total amount of the said four cheques being rs. 36,53,398/- plus a sum of Rs. 2,77,458/- by way of interest from 29. 09. 1999 to 29. 02. 2000 @18% per annum. The plaintiff has also prayed for pendente lite interest and future interest as well as costs of the present suit.

( 4 ) IN the leave to defend application filed under Order XXVII Rule 3 (5) as well as the affidavit of defendant No. 2 filed along with the said application, the defendants have come up with a case that the present suit is a counter blast to a recovery Suit No. 291/2000 and a complaint under Sections 406, 409 and 420 of the Indian Penal Code filed on 30. 01. 2000 by the defendant No. 2 against the plaintiff. It is also the case of the defendants that this entire story of supply of gold by the plaintiff to the defendants has been pleaded for the first time in the suit and does not find mentioned in the complaint case under Section 138 of the Negotiable Instruments Act, 1881 initiated by the plaintiff in respect of these very four cheques which form the subject matter of the present suit. It is contended by the defendants that the defendant No. 2 issued four postdated cheques (dated 28. 09. 1999), in advance, on 27. 09. 1999 to bind the plaintiff at the settled rates as per their earlier practice. It is then contended by the defendants that there was an unexpected steep hike in gold prices after

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