IQBAL MOTORS TRANSPORT SERVICE Vs. NIRBHAY TREHAN

JUDGEMENT

(1.) Shri Nirbhay Trehan - respondent herein, has filed a Suit (Annexure A to petition) under Order XXXVII of the Code of Civil Procedure Svt. 1977, for recovery of sum of Rs.85.00 Lacs before the learned 2nd Additional District Judge, Srinagar (for short "Trial Court"), on the basis of cheque bearing no.748588 dated 6th July 2015, payable at J&K Bank Branch Unit Shalimar Road, Jammu, issued by M/s Iqbal Motors Transport Service - petitioner herein, whereby petitioner had agreed to pay the said amount to respondent. Case set up by respondent before learned Trial Court was that he had transaction with petitioner. Petitioner moved an application (Annexure B to petition) under Order XXXVII Rule 3(5), CPC, for grant of leave to defend suit filed by respondent and file written statement. Petitioner levelled therein the allegation of pilferage of cheque by S/Shri Abdul Majid Sheikh and Nirbhay Trehan. Objections (Annexure C to petition) to the application of petitioner were filed by respondent. Learned Trial Court, after going through pleadings of both parties and hearing counsel for parties, vide order dated 17th September 2018 (Annexure D to petition) has dismissed petitioner's application for leave to defend. It is this order, of which petitioner is aggrieved and seeks setting-aside thereof and allowing application filed by him for leave to defend the claim of respondent before learned Trial Court.

(2.) The case set up by petitioner is that a civil suit came to be instituted by respondent/plaintiff against petitioner/ defendant, seeking a decree for an amount of Rs.85.00 Lacs, on the premise that respondent has business transaction with petitioner and in discharge of debt, respondent handed over a cheque to respondent, which cheque on being presented by respondent for collection at Axis Bank, Srinagar, was returned back along with memo with endorsement "insufficient amount". It is contended that in response to summon, petitioner within time upon entering appearance, filed an application seeking leave to defend in terms of Sub Rule (5) of Rule (3) of Order XXXVII CPC. Petitioner states that he urged availability of good defence to the claim lodged by respondent inasmuch as he raised triable issues indicating that he has a bona fide and reasonable business and even disclosed such facts, which were sufficient to entitle him to defend the claim respondent/plaintiff has projected. Petitioner states that he brought facts in application that he had reported missing of cheque book through his Accountant - Mahraj Krishen, on 26th February 2014, since cheques in Cheque Book bearing no.748501 and 748600 were signed blank cheques, to Police as also to concerned Bank and subsequent to lodgement of missing reports, petitioner came to know that said cheques had been removed with aid and assistance of one Abdul Majid Sheikh son of Haji Ghulam Ahmad Sheikh resident of Tengpora, Byepass, Srinagar. Petitioner also averred in the application that the suit was not based on any legal documents, disclosing any jural relationship between petitioner and respondent inasmuch as petitioner had no liability towards respondent.

(3.) I have heard learned counsel for parties and considered the matter.