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TMI Blog2018 (11) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 46734/2018(stay) 3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 26.03.2018 by which trial court has dismissed the Leave to Defend application filed by the appellant/defendant under Order XXXVII Rule 3(5) CPC and has decreed the suit filed by the respondent/plaintiff under Order XXXVII CPC for recovery of Rs. 4.38 lakhs on the basis of a dishonored cheque. 4. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that the appellant/defendant took a friendly loan of Rs. 3 lakhs from the respondent/plaintiff on 05.10.2014. The loan amount was secured by a Post-Dated Cheque dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to as 'N.I. Act'), the respondent/plaintiff when was cross-examined on 10.04.2017, he could not give proper answers as to how he had arranged the amount of Rs. 3 lakhs for being given as loan by respondent/plaintiff to the appellant/defendant. Accordingly, the appellant/defendant prayed for unconditional leave to defend. 6. The principles with respect to grant of leave to defend are stated by the Supreme Court in its recent judgment in the case of IDBI Trusteeship Services Ltd. v. Hubtown Limited, (2017) 1 SCC 568 and the relevant paras of which judgment read as under:- "17. Accordingly, the principles stated in paragraph 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3, and the binding decision of four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case requires. 17.5 If the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the Plaintiff is entitled to judgment forthwith. 17.6 If any part of the amount claimed by the Plaintiff is admitted by the Defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the Defendant in court." 7. It is therefore seen that in case the defence is found to be frivolous or vexatious or not raising a triable issue, thus leave to defend cannot be granted. 8. Trial court in my op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , much less a criminal complaint, has been filed by the appellant/defendant that the subject cheque has been illegally misused or was illegally retained by the respondent/plaintiff. I would also like to give an additional reason, that besides the fact that the case under Section 138 of the N.I. Act is pending, in view of the provision of Section 118 of the N.I. Act there is a presumption of cheque being given for consideration and a person who takes a loan and gives his cheque to secure the loan, cannot argue that the respondent/plaintiff who gave the loan must prove that he had the financial capacity to give the loan. In any case, the respondent/plaintiff has stated in the cross-examination in the case under Section 138 of N.I. Act that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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