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2019 (8) TMI 1 - HC - Indian LawsConditional leave to defend upon deposit - dishonored cheques - whether, in the backdrop of the material on record, the learned Judge, City Civil Court, justifiably exercised the discretion to grant conditional leave to defend upon deposit of the amount covered by the dishonoured cheques? HELD THAT:- The defence set up in the case at hand needs to be appreciated so as to determine in which of the categories the defence set up by the petitioner falls. Recourse to the impugned order, at this stage, may be apposite. The learned Judge found that the defence of the defendant that he had delivered blank signed cheques is a sham and moonshine defence - The defence set up by the defendant is required to be appreciated in the backdrop of the fact that there is no qualm over the fact that there were transactions of sale and delivery of the goods between the plaintiff and defendant. It is indisputable that the plaintiff delivered the goods and defendant paid for the price of the bills at serial nos.1 to 15. Thus, the quality of defence of misuse of blank signed cheques needs to be evaluated on the anvil of the contemporaneous record and conduct of the defendant. Undoubtedly the plaintiff placed on record the delivery challans after the defendant alleged that there were no documents to evidence the sale and delivery of the goods. However, this fact itself is not sufficient to jettison away the claim of the plaintiff. The fact that the suit was instituted on the basis of the dishonoured cheques cannot be lost sight of. The plaintiff may adduce evidence in proof of underlying transaction of sale and delivery of goods. However, in view of the presumption of law incorporated in Section 118 of the N. I. Act, the Court is enjoined to presume that the cheques were drawn for consideration - The defence raised by the defendant thus fall in the category of a defence which is plausible but improbable - the learned Judge rightly exercised the discretion to grant conditional leave upon deposit of the amount covered by the dishonoured cheques. Petition dismissed.
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