DAISY K MEHTA Vs. KAPIL KUMAR

JUDGEMENT

(1.) By this application the defendant seeks leave to defend the suit filed by the plaintiff under Order XXXVII CPC.

(2.) Learned counsel for the defendant/ applicant states that by mere issuance of a cheque it cannot be presumed that the defendant was liable to pay a debt and the cheque was issued in discharge of the liability. Since the plaintiff in the entire plaint has not shown that a concluded contract which was legally enforceable, with regard to sale and purchase of Convertible Warrants was entered between the parties and the defendant on that account was indebted to pay to the plaintiff the amount mentioned in the cheque, the plaintiff cannot be granted the permission to seek a judgment against the defendant by way of summary procedure. In the entire plaint or the documents enclosed it is nowhere stated that the possession of the 2,50,000 Convertible Warrants was handed over to the defendant. The cheque that was dishonoured was thus issued in discharge of the liability. From a perusal of the e-mails between the parties a clear inference can be drawn that the possession of the Convertible Warrants was never handed over, and thus Order XXXVII CPC has no application to the facts of the present case. Thus, leave to defend be granted to the defendant.

(3.) Learned counsel for the plaintiff on the other hand contends that from the perusal of the documents it is clear that the defendant was handed-over the Convertible Warrants and the cheque was issued in lieu of the said liability. Thus, no leave to defend be granted.