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2019 (7) TMI 392 - DELHI HIGH COURTDishonor of Cheque - Rejection of leave to defend the summary suit preferred by the respondent/plaintiff - Order XXXVII Rule 3 (5) CPC - loan was gib=ven without receipt of the same - HELD THAT:- The fact remains that the appellant’s application and supporting affidavit filed under Order XXXVII Rule 3 (5) CPC for leave to defend neither refers to any so-called chit fund committee run by the respondent’s father, nor does it refer to the fact that the name of UTI Bank Ltd. had undergone a change in the year 2007 itself - which pleas have been raised for the first time before this Court. Nevertheless, the said affidavit states, in no uncertain terms, that the transaction of loan set up by the respondent was concocted and fabricated, and that nothing had been pointed out as to why the appellant would take such a huge amount of loan from the respondent or as to why the respondent had advanced such loan to him, that too, without any receipt/acknowledgment of the same. When I consider the defence raised by the appellant viz. the respondent’s claim that the entire purported loan amount was given by him to the appellant in cash without taking any receipt/acknowledgement from him, as also the fact that the respondent’s criminal complaint filed under Section 138 of the NI Act, 1881 stands rejected in respect of the same cheque, I am unable to agree with the learned Trial Court that the appellant does not have any defence whatsoever or that his defence is wholly vexatious. It cannot be said that merely because the appellant failed to take the specific pleas, as urged before this Court, in his application/ affidavit for leave to defend, that such omission should disentitle him altogether from being granted leave to defend when the said affidavit clearly shows that he had, in no uncertain terms, stated that the whole transaction as set out by the respondent was concocted, fabricated and that no money had been exchanged between the parties. It is a settled legal position that the discretion to be exercised, while considering a prayer for grant of leave to defend the suit, would depend on the peculiar facts of each case and that the same cannot be put in any straitjacket formula. If the Court finds that the defence is wholly moonshine and sham, then leave to defend is liable to rejected; but if the defence is found plausible, though not very probable, the Court would be justified in putting the defendant on terms while granting leave to defend. Thus, even though the appellant’s defence may not be very probable, yet the same cannot be said to be wholly vexatious - the decision of the learned Trial Court declining to grant leave to defend to the appellant cannot be sustained - The appellant is granted leave to defend, subject to his depositing 50% of the principal amount with the learned Trial Court within eight weeks from today. The matter is remitted to the learned Trial Court for consideration of the matter afresh, in accordance with law - appeal allowed.
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