Issuance of cheques establishes a presumption of legally enforceable debt; failure to raise genuine triable issues leads to denial of leave to defend.

JUDGMENT :

GIRISH KATHPALIA, J.

1. The appellant has assailed judgment and decree dated 06.04.2022, passed by the learned Additional District Judge, East District, Karkardooma Courts, Delhi, in the suit filed by the present respondent under Order XXXVII CPC. By way of the impugned judgment, the learned Trial Court dismissed the application of the appellant seeking leave to defend the suit.

2. At their request, I have heard final arguments advanced by learned counsel for both sides and examined the record.

3. Briefly stated, circumstances leading to the present appeal are as follows:

3.1 The present respondent filed a summary suit for recovery of Rs.14,04,000/- against the appellant, pleading that being tourist guide by profession, he was introduced with the appellant by their common friend; that the appellant allured him to invest money in some profitable venture, so he paid a total sum of Rs.14,04,000/- to the appellant in multiple installments during the period from 16.01.2013 to 27.01.2014; that thereafter, the appellant started avoiding him as regards the said investments and finally, on being persuaded, the appellant issued four post dated cheques in the month of May, 2015 in his favour; that those cheques, totaling to the tune of Rs.14,04,000/- got dishonoured by the banker of the appellant for the reason that the funds in his account to his credit were not sufficient; and that when despite repeated demands, the appellant did not pay back the said amount, he issued legal notice dated 10.03.2018, but the appellant opted to avoid the same. Therefore, the present respondent filed the summary suit under Order XXXVII CPC on the basis of those bounced cheques.

3.2 After service of summons to enter appearance, followed by entering appearance and service of summons for judgment under Order XXXVII CPC, the appellant filed application seeking leave to defend the suit.

3.3 In his application for leave to defend, the appellant took a plea that since the respondent did not file any criminal complaint under Section 138 Negotiable Instruments Act , no liability survives against him. Additionally, it was also pleaded and testified by the appellant in his application for leave to defend that the cheques in question were forcibly obtained from him by the respondent and his musclemen, who abducted and detained him for that purpose.

3.4 Both the said grounds were rejected by the learned trial court, holding that the same do not raise any triable issue because admittedly the cheques in question were signed and issued by the appellant and those cheques got bounced. Thence, the application of the appellant for leave to defend was dismissed and consequently, the suit was decreed.

3.5 Hence, the present appeal.

4. During arguments today, learned counsel for appellant contends that the impugned judgment and decree are not sustainable in the eyes of law because there was no legally enforceable debt insofar as even according to the respondent, the money paid by him to the appellant was for investment. Learned counsel for appellant also contends that pleadings of the appellant clearly raised a triable issue as to whether the cheques in question were obtained under coercion after abducting and illegally detaining the appellant. No other argument has been advanced.

5. On the other hand, learned counsel for respondent supports the impugned judgment and decree and also submits that the appellant had issued cheques in same fashion to another person, who also obtained decree.

6. The legal position as regards scope of grant or denial of leave to defend a suit under Order XXXVII CPC is now well settled. In plethora of judicial pronouncements, the Supreme Court laid down the principles on which an application for leave to defend has to be examined by the trial court. In one such case titled: IDBI Trusteeship Services Limited vs. Hubtown Limited , (2017) 1 SCC 568 , the Hon’ble Supreme Court held thus:

“16. It is thus clear that Order 37 has suffered a change in 1976, an