Ajit Prakash Shah, C.J.

1. This is an appeal from an order passed by the learned single Judge on Interim Applications taken out by the defendants (appellants herein) in a summary suit for leave to defend, by which the learned single Judge granted leave to the defendants to appear and defend the suit on their depositing Rs. 1,00,00,000/-(Rupees one crore).

2. The present suit has been filed by the respondent herein under Order XXXVII of the Code of Civil Procedure on the basis of a cheque for an amount of Rs. 2,22,47,516/-, which had been issued by the defendant No. 1 i.e. appellant No. 1, of whom the defendant No. 2 i.e. appellant No. 2 was the authorised signatory being one of the Directors. The said cheque having been received by the respondent was presented for payment but the same could not be realised on account of the fact that the appellants had issued a stop payment instruction. It is an admitted position that the cheque was issued and that the stop payment instruction was also issued. On behalf of the appellants a defence was raised that the appellants have a counter claim against the respondent for virtually the same amount and a suit had been filed by the appellant No. 1 in the District Court at Ghaziabad, UP against the respondent. It was contended that since the issues in both the suits were same, apart from the fact that leave to defend should be granted to the appellants, the present suit should also be stayed in view of the provisions of Section 10 of the Code of Civil Procedure. The learned single Judge, however, noticed that the respondent herein, who was the defendant in the suit at Ghaziabad, moved an application for stay of the suit at Ghaziabad and in the reply given by the appellants herein it was stated that the suit at Ghaziabad and the present suit did not involve common issues and that the subject matter was different. The contention of the appellants was accepted by the Court at Ghaziabad and that formed the basis of the dismissal of the respondents application for stay of the suit at Ghaziabad. The learned single Judge held that the appellants cannot be allowed to raise a contrary case before this Court that the two suits are similar. The only other plea which was raised before the learned single Judge was that there was some oral understanding between the parties that the cheque, although issued, ought not to be presented by the respondent till the accounts were settled between the parties. The learned single Judge noted that the respondent has denied any such oral understanding and that in any event the purported oral understanding could not override the written correspondence between the parties. Taking into consideration the totality of the circumstances, learned single Judge permitted the appellants to defend the suit on their depositing Rupees one crore in this Court.

3. Mr. Phoolka on behalf of the respondent has raised a preliminary point that the order made by the learned single Judge is not a judgment within the meaning of Section 10 of the Delhi High Court Act, and, therefore, no appeal lies from the order. He referred to the decision of the Calcutta High Court in Hiralal Deb Gupta v. Salil Kumar Paul and Anr. AIR1973Cal320 where a Division Bench has held that the appeal against the order of the learned trial Judge granting conditional leave to defend is incompetent and not maintainable. It has been held in that decision that no appeal lies from such an order and the course left open to the aggrieved party is to prefer an appeal from the decree and in the said appeal from the decree the said ground of not granting unconditional leave, may be taken. Reference was also made to a decision of the Supreme Court in Ajay Bansal v. Anup Mehta and Ors. AIR2007SC909 concerning maintainability of an application under Article 227 against an order refusing to grant leave in a summary suit under Order XXXVII of the Code. In this case the learned Civil Judge refused to grant leave to defend an