S K CHAUDHARY Vs. BHAGWAN DASS BATRA

JUDGEMENT

(1.) Admitted, This revision petition by the defendant is directed against the order dated 25.1.1989 passed by the learned trial Judge whereby his application for leave to defend was dismissed and the suit of the plaintiff filed under older 37 Civil Procedure Code was decreed.

(2.) The suit was instituted for the recovery of Rs. 23,000.00 on the basis of a cheque having been issued by the defendant. The cheque was issued in January 1982. It was not presented for encashment for over five months. The defence as set up in the application was that during this period i.e. in March 1982, the matter had been settled between the parties and the plaintiff executed a receipt on that date. The receipt has also been shown to me. It ^ no doubt true that the receipt does not talk of the cheque amount of Rs. 23.000.00 but it does talk of some settlement about the property transaction. All the same it will have to be shown by the plaintiff as to the purpose for which the amount was advanced and how and why it was advanced. The plaintiff will have to prove all these facts. In case the transaction was independent of the property then the plaintiff might have a case but it cannot be presumed without trial that transaction was independent of the property because admittedly there was no transaction regarding the immoveable property directly between the plaintiff and the defendant and the transaction was between the plaintiff and the defendant's father. The defendant had also produced some tape-recordings which probably were not clear to the learned trial Judge. Considering the circumstances that the cheque was not presented for such a long period and during this period there was some settlement of. some dispute between the parties, it does give rise to triable issues. In my opinion, it was a fit case where leave to defend should have been granted to the defendant.

(3.) For the reasons recorded above, the revision petition is allowed and the impugned order is set aside. The petitioner-defendant is granted unconditional leave to defend. The defendant will file written statement on the next date of hearing before the learned trial Judge. The parties are directed to appear before the learned trial Judge on 26.4.1989. No order as to costs.