A defendant in a summary suit is entitled to leave to defend if they raise plausible triable issues, even if the defense is not strong.

JUDGMENT :

DIVYESH A. JOSHI, J.

1. Rule returnable forthwith. Learned advocate Mr. B.Y. Mankad waives service of notice of rule for and on behalf of the respondent.

2. The challenge in the instant application filed under Article 226 of the Constitution of India, is the order dated 08.01.2024 passed below Exh.14 in Special Summary Suit No. 1 of 2022 by the learned Principal Senior Civil Judge, Nakhatrana-Kachchh, rejecting the application of the writ applicant filed below Exh.14 under Order XXXVII Rule 3(b) of the Code of Civil Procedure, 1908 (in short ‘CPC”) seeking leave to defend the suit.

3. The relevant factual and background aspects of the matter are as follows:

3.1 The plaintiff-respondent filed the subject suit in terms of Order XXXVII of the CPC against the defendants-writ applicants, inter alia, stating that he was having cordial relationship with the father of the defendants-writ applicants, and therefore, time and again, they were entering into some financial transactions.

3.2 According to the plaintiff-respondent, on 15.02.2021, as the father of the defendants-writ applicants was in some financial need, he approached the respondent-plaintiff and demanded an amount of Rs.33,00,000/- with the assurance of paying back the said amount within two months, which was accordingly given by the respondent-plaintiff.

3.3 The plaint also states that against the outstanding amount payable to the plaintiff-respondent, the father of the applicants-defendants issued a cheque bearing No. 112257 dated 15.04.2021 for an amount of Rs.33,00,000/- of The Axis Bank, Bhuj Branch drawn in favour of the plaintiff-respondent. The plaintiff-respondent negotiated the cheque in question through its banker Bhuj Mercantile Co-Op. Bank Ltd. Nakhatrana which was dishonoured with an endorsement of “funds insufficient.”

3.4 The plaintiff-respondent, thereafter, issued a statutory notice dated 13.05.2021, and called upon the father of the writ applicants-defendants to make good the amount mentioned in the cheque, however, despite such notice being issued, the father of the writ applicants-defendants did not make the payment. The plaintiff-respondent, thereafter, proceeded to file a complaint before the competent court under Section 138 of the Negotiable Instruments Act, 1881.

3.5 The plaintiff-respondent then filed summary suit being Special Summary Suit No. 1 of 2022 in the court of the learned Principal Senior Civil Judge, Nakhatrana-Kachchh under Order XXXVII Rule 2 of the CPC for recovery of an amount of Rs.33,00,000/- indebted to the plaintiff-respondent with 18% interest accrued thereon, whereupon, summons came to be issued to the defendants-applicants on 21.04.2022. However, the original defendant did not remain present either in person or through an advocate.

3.6 Thereafter, on 01.08.2022, the original defendant Pratap Kumar Bhagwanji Thakkar passed away and, therefore, the respondent-plaintiff moved an application below Exh.7 to bring on record the heirs of the deceased-defendant, wherein notice came to be issued to the applicants-defendants, which was duly served to them, however, they could not remain present before the trial court, which led the trial judge to pass an order of proceeding ex-parte, which order then got quashed and set aside by the applicants-defendants and obtained an order of bi-parte hearing, and ultimately, they were ordered to be joined as party to the proceedings.

3.7 Thereafter, on 14.03.2023, the applicants-defendants filed an application below Exh.14 in Special Summary Suit No. 1 of 2022 under Order XXXVII Rule 3 of the CPC, inter alia, praying for leave to defend the suit on the grounds made thereunder. The said application came to be rejected by the learned Principal Senior Civil Judge, Nakhatrana-Kachchh vide order dated 08.01.2024. Being aggrieved, the applicants-defendants are here before this Court with the present application.

4. Learned advocate Mr. A.P. Shah appearing for the applicants-defendants submits that the appl