The defendant must raise a triable issue and disclose a good, fair, bonafide, or reasonable defence to be entitled to leave to defend under Order XXXVII of the Code of Civil Procedure, 1908.

G.S. Sistani, J (Oral)

I.A. 5196/2012

1. This is an application under Order 37 Rule 2 & 3 CPC filed by the defendant for entering appearance.

2. Since the defendant has entered appearance through counsel, the present application stands disposed of.

IA.No.4062/2013

3. Previous costs imposed have not been paid. The same stands waived of as prayed.

4. Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908. Memo of appearance was filed and thereafter the plaintiff has filed an application for summons for judgment. Defendant has filed the present application for leave to defend.

5. According to the plaint, the plaintiff was desirous of selling gold weighing 2010 grams and he wanted to raise money from the same. The defendant approached the plaintiff. Accordingly on 17.2.2010 the entire gold worth Rs.20,10,000/- was purchased by the defendant from the plaintiff and a sum of Rs.45,000/- was paid in cash to the plaintiff and it was agreed that the balance amount of Rs.19,65,000/- would be paid within a period of three months along with interest to the tune of Rs.35,000/-, thereon, amounting to a total of Rs.20.00 lakhs. A post-dated cheque bearing No.695198 dated 17.5.2010 drawn on Indian Overseas Bank, Shalimar Bagh, Delhi, in the sum of Rs.20.00 lakhs was handed over to the plaintiff.

6. Upon deposit of the aforesaid cheque by the plaintiff, the same was returned with the endorsement “Funds Insufficient” vide cheque return memo dated 19.5.2010. The plaintiff contacted the defendant, upon which he was asked to re-present the cheque and on presentation the cheque was again dishonoured for the same reason by a return memo dated 16.7.2010. The plaintiff also issued a legal notice dated 3.8.2010 to the defendant both by the registered AD post and the UPC, however, no response was received. Counsel for the plaintiff submits that the present suit is based on dishonour of the above mentioned cheque.

7. Counsel for the defendant has sought leave to defend the suit on the ground that the suit is based on a false and fabricated document and there is no liability of the defendant towards the plaintiff. It is also submitted that the defendant had never approached the plaintiff for purchase of his gold; the cash memo dated 17.2.2010 filed along with the suit is a false and fabricated document. It is also submitted by counsel for the defendant that the memo does not give details of the cheque, if any, which was handed over by the defendant to the plaintiff. Counsel next contends that the plaintiff has not placed on record the receipt for the alleged cash amount of Rs.45,000/- paid to him. Moverover, there is no written contract between the parties to show that there was any debt of Rs.19,65,000/-, nor is there any justification for payment of interest of Rs.35,000/-.

8. Another defence which has been raised by the defendant is that the gold could not have been purchased by the defendant at the rate of Rs.10,000/- per 10 grams, when during the appropriate period, the market rate was Rs.19,000/-per 10 grams. It is also submitted that the cheque in question was not handed over to the plaintiff by the defendant but the same was handed over to one Karamvir with respect to purchase and development of some property, which has been misused by the plaintiff in collusion with the said Mr.Karamvir. It is submitted that the cheque was presented without any mandate from the defendant to the bank and based on a false and fabricated story the present suit has been instituted. It is also the case of the defendant that he was falsely implicated in 15 FIRs registered at Police Station Shalimar Bagh; and on account of these FIRs he was in judicial custody on more than 5 occasions and thus he could not look after his day-to-day business. Hence, the defendant prays for unconditional leave in the matter.

9. In response to the submission made by counsel for the defendant, counsel for the plaintiff sub