I J TRANSPORT COMPANY Vs. GANGA AUTO AGENCY

JUDGEMENT

(1.) IN this case, the respondent-plaintiff field a suit for recovery of Rs. 16,50,000.00 on the basis of three cheques bearing Nos. 03295551 dated 28. 7. 1995 for Rs. 5 lacs; No. 03295552 dated 2. 8. 1995 for Rs. 5 lacs and No. 03295553 dated 10. 8. 1995 for Rs. 5,96,332.00, issued by the petitioner-defendants in favour of the plaintiff, under Order 37, CPC alongwith interest, future and pendente lite and costs. " The said suit was decreed by the Civil Judge, Senior Divisipn, Jagadhri vide judgment dated 21. 12. 1996. The learned Civil Judge observed that the defence which the defendants wanted to raise was illusory, sham and frivolous and they only wanted to prolong the case as it will take a number of years to decide the case if the defendants were allowed to file written statement and after framing of issues the evidence was allowed to be adduced. The present petition has been filed against the said judgment dated 21. 12. 1996 by which the leave to defend has been declined to the petitioner-defendants.

(2.) MR . Goel learned counsel appearing on behalf of the petitioner-defendants submitted that Order 37 of CPC was not applicable to the present case as the present case was based on cheques and not on bills of exchange, Hundis or promissory notes or on written contract as envisaged in Order 37 CPC. He further submitted that the petitioners had raised a plausible defence in their application seeking leave to defend the suit. He submitted that the cheque book containing the cheques in question was taken away by the plaintiff fraudulently and the signatures on the cheques were fabricated. He, therefore, contended that the learned trial Court should have given leave to the defendants. He further submitted that even if the defendants had no defence or the defence was illusory the Court may protect the plaintiff by only, allowing the defence to proceed if the amount was secured and the leave could be given to the defendant on such condition. In support of his submission, he placed reliance on a judgment of the Supreme Court in Mechalec Engineers and Manufacturers and Ors. v. Basic Equipment Corporation, A. I. R. 1997 S. C. 577.

(3.) THE learned counsel further submitted that the petitioners-defendants in their application seeking leave to defend, had admitted that the defendants were having business transactions with the plaintiffs and some amount was payable by the defendants to the plaintiffs. He, therefore, contended that in view of the said facts, the learned trial Court was of the opinion that the grant of leave would merely enable the defendants to prolong the litigation by raising frivolous defences and accordingly declined the leave to the defendants.