SANJAY KISHAN KAUL, J.

( 1 ) IA No. 11181/2001 (u/o XXXVII R. 3 (5) CPC) the plaintiff has filed a suit for recovery of Rs 46,70,470/- under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as the code ).

( 2 ) THE plaintiff is a company incorporated and registered under the Companies act, 1956. It is the case of the plaintiff that on 09. 07. 1997 defendant came to the office of Mr. R. C. Kapoor, charted accountant and requested the plaintiff through its Manager Rohit Bahl to advance a sum of Rs 25 lakh as loan. The plaintiff wanted collateral security and the defendant in view of the same surrendered 1,13,000 shares bearing distinctive numbers from 020082703-020195702 of M/s Padmini Polymers Ltd. The defendant is further stated to have given additional 29,000 shares bearing distinctive numbers from 020195703-020224702 of the same company towards the margin money for performance of the said agreement as prevalent in the market. On surrender of the said shares, the sum of Rs 25,00,000 was advanced to the defendant and sale confirmation was executed.

( 3 ) IT is stated that the defendant approached the plaintiff for execution of an agreement for repurchase of both the set of shares on 06. 10. 1997 and an agreement was executed being the purchase agreement.

( 4 ) SIMULTANEOUSLY a cheque dated 06. 10. 1987 drawn on Punjab National Bank, Okhla industrial Area, New Delhi for the sum of Rs 26,23,860/- was handed over to the plaintiff by the defendant towards the principal and the interest accrued thereon.

( 5 ) THE plaintiff states that as per instructions of defendant this cheque was not to be presented for a period of three months and was presented in the beginning of January, 1998 and was returned on 06. 01. 1998 for insufficiency of funds. The cheque was again presented on two occasions, but the same was again dishonoured and was last returned on 03. 04. 1998. The plaintiff has thus filed this suit on 03. 01. 2001 for the principal along with interest at the rate of 24 per cent per annum.

( 6 ) IN the leave to defend application, a three-fold plea has been raised. The first plea raised is in respect of limitation. The defendant also claims that there is no written contract and and thus the suit would not be maintainable under the provisions of Order 37 of the Code. On merits, it is stated that the shares have actually not been returned and the cheque had been handed over in good faith. It is also stated that though the plaint refers to two sets of shares, the documents filed do not show the purchase confirmation for the 29,000 shares.

( 7 ) INSOFAR as the plea of the written document is concerned, I find it difficult to accept the same since the transaction is not in question. The sale confirmation and purchase confirmation show the same and the suit is based on the negotiable instrument being the cheque which has been returned for insufficiency of funds. However the plea of the defendant about there being no handing over of the shares as per purchase confirmation has to be examined. Learned counsel for the defendant does not dispute that there is no written communication by the defendant objecting to the same or any legal action taken in respect thereof. The defendant has however filed with the rejoinder certain documents being the transfer deeds showing transfer of shares to Mr. Rohit Bahl.

( 8 ) IN my considered view, it was the duty of the defendant to have disclosed all the documents relied upon at the stage of filing of the application for leave to defend since the plaintiff can have no opportunity to meet the case set up in the rejoinder. What is however relevant is that there is no document filed in respect of the purchase confirmation regarding 29,000 shares and thus it is not shown as to how those 29,000 shares were returned, if at all.

( 9 ) THE most material aspect in the present application is the plea of limitation and this arises out of the plea as to whether it is the

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