The main legal point established in the judgment is that the defendants must establish a reasonable, fair, and bonafide defense to be entitled to defend a summary suit. The court also clarified that the statutory notice under Section 72 of the Cooperative Society Act is not a prerequisite for granting leave to the plaintiff.

JUDGMENT :

Sureshwar Thakur, J

This order will dispose of an application, cast under the provisions of Order 37 Rule 3 (5) of the Code of Civil Procedure, as, moved before this Court, by the defendants/applicants(hereinafter referred to as the “defendants”), wherethrough, they seek hence leave to defend the summary suit, instituted by the plaintiff/non-applicant (hereinafter referred to as the “plaintiff”).

2. The plaintiff has instituted the instant suit, cast under the provisions of Order XXXVII, of the Code of Civil Procedure, seeking there-through, the, recovery of suit amount. An averment is embodied in the plaint, qua the plaintiff being a duly registered cooperative Society, registration whereof, is, entered at Sr. No. 687, in the apt records, maintained by the Registering Authority concerned. The plaint has been instituted by the duly authorized representative of the society. The suit has been drawn, on, anvil of cheque bearing No. 409422 of 6.9.2016, drawn on State Bank of India, Solan, embodying therein a sum of Rs. 45,50,000/-, cheque whereof, upon, its presentation before the Bank concerned, was refused to be honoured, on account of “ Drawer sign not as per mandate”. Photocopy of the Cheque is appended with the plaint as Annexure P-3. In sequel thereto, the apt statutory notice was served, upon, the defendants. Notice whereof, is, borne in Annexure P- 5, and, upon the defendants not meteing compliance thereto, a complaint embodied, in Annexure P-6, was, instituted before the Court of Judicial Magistrate, Ist Class, (II), Solan. Clause (a) of Paragraph 5 of the plaint, details the amount(s) taken as loan, by the defendants, from the plaintiff.

3. Succinctly, the dishonored cheque borne in Annexure P-3, is, espoused to be carrying hence sum(s) of money arising, towards a legally enforceable debt. The plaintiff, through the instant plaint, cast under the afore provisions, has, upon Annexure P-7, Annexure whereof comprises a notice issued by the defendants, hence, reared a vehement contention, before this Court, (i) that the recitals borne therein, being, readable as admission(s) of the defendants, vis-a-vis, issuance, of, the afore dishonored negotiable instrument, borne in Annexure P-3, being towards a legally enforceable debt, hence, a verdict rather summarily decreeing the plaintiff’s suit being pronounced, upon, the plaintiff.

4. When notice was served, upon the, defendants, the instant application, cast under the provisions, of, Order 37 Rule 3(5) of the Code of Civil Procedure, stood instituted before this Court, by the defendants, wherethrough, they seek leave of the Court, to, defend the suit, and, obviously espousals’ contrary to the ones embodied in the plaint, stand reared therein. In paragraph 2 of the afore OMP, a contention is reared qua some borrowings, being made by the defendants, from the plaintiff society, and, the entire borrowings being liquidated, by the defendants, and, also disclosures rather holding concurrence, with, the afore averment, hence, also occur in the apt statement, of, account prepared up to 31.3.2016. A further averment is borne therein qua liquidation of the loan amount being made, either, through RTGs or through cheques, hence, per se, the defendants contest, that, the apt liquidation not occurring through cash payments. A denial is borne in afore OMP qua the amount embodied in the cheque aforesaid, being, not realizable, from, the defendants, hence, the suit being not maintainable, for, its being hence summarily decreed.

5. A contention, vis-a-vis, the suit being not maintainable, within, the ambit, of, Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968, is, also reared, conspicuously qua the condition set-forth therein, remaining un-complied with, by, the plaintiff. Further more, the afore dishonored cheque, is, contended by the defendants to be a part of a series of blank security cheques, issued, by the defendants, to, the plaintiff before March, 2016. Moreover, i