Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2023 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 240 - HC - Indian LawsDishonour of Cheque - insufficient funds - meeting the standard of “preponderance of probability”, and not mere possibility - petitioner submits that there is no real defence available to the defendants to dispute the claim of the plaintiff and thus this is a fit case for passing a summary judgment and decree against the defendants - HELD THAT:- Order 37 Rule 2 of the Code of Civil Procedure which is similar to those of Chapter XIIIA of the Original Side Rules of this Court. Leave to defend the suit brought under Order 37, Rule 2 of the Code of Civil Procedure,1908 is declined where the Court is of the opinion that the grant of leave will merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that the facts alleged by the defendant to establish their case would be a good or even a plausible defence on those facts. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based on uncertainty as to the amount actually due or where the alleged facts are of such nature as to entitle the defendant to interrogate the plaintiff to crossexamine his witnesses should not be denied. Summary judgements under Order 37 should not be granted where serious conflict as to the matter of fact where any difficulty on issues as to law arises, the Court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency. In the present case, this Court finds that the defendant had set up his defence in the written statement and also disclosed the documents in support of his defence. This Court is of the view that the defendant may be given a chance to prove his defence only if the defendant secures the claim of the plaintiff by depositing the amount with the Registrar of this Court. Application disposed off.
|