Case Note & Summary
The plaintiff filed a summary suit under Order 37 of the Code of Civil Procedure, 1908, to recover amounts lent and advanced to the defendant, based on a dishonoured cheque. The defendant admitted receiving the loan and issuing the cheque but contended that the cheque was given as security for a different transaction. The court held that the defendant's bare assertion without any documentary evidence did not raise a triable issue. Consequently, the court decreed the suit in favor of the plaintiff for the principal amount with interest at 6% per annum from the date of the suit until realization, with costs.
Headnote
A) Civil Procedure - Summary Suit - Order 37 CPC - Leave to Defend - Defendant admitted receipt of loan and issuance of cheque but claimed it was given as security for a different transaction - Held that such a claim without any documentary evidence does not raise a triable issue, and the defendant is not entitled to leave to defend (Paras 1-3).
Issue of Consideration
Whether the defendant has raised any triable issue entitling him to leave to defend in a summary suit based on a dishonoured cheque.
Final Decision
The court allowed the Summons for Judgment and decreed the suit in favor of the plaintiff for the principal amount with interest at 6% per annum from the date of the suit until realization, with costs.
Law Points
- Summary suit
- Order 37 CPC
- Leave to defend
- Triable issue
- Admission of liability
- Dishonoured cheque
Case Details
2005 LawText (BOM) (12) 75
Summons for Judgment No.517 of 2005 in Summary Suit No.3082 of 2004
Mr. Dilip A. Shinde for the Plaintiff, Mr. D.J. Lulia for the Defendant
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Nature of Litigation
Summary suit for recovery of money based on a dishonoured cheque.
Remedy Sought
Plaintiff sought recovery of amounts lent and advanced to the defendant.
Filing Reason
The defendant issued a cheque towards repayment of the loan, which was dishonoured.
Issues
Whether the defendant has raised any triable issue entitling him to leave to defend in a summary suit under Order 37 CPC.
Submissions/Arguments
Plaintiff argued that the defendant admitted the loan and issuance of the cheque, and the cheque was dishonoured.
Defendant contended that the cheque was given as security for a different transaction, not for the loan claimed.
Ratio Decidendi
In a summary suit under Order 37 CPC, a defendant is entitled to leave to defend only if he discloses a triable issue. A bare assertion without documentary evidence does not constitute a triable issue.
Judgment Excerpts
The suit is filed to recover the amounts lent and advanced by the Plaintiff to the Defendant.
The Defendant admits that the said cheque was issued by him towards the repayment of the said amount.
Procedural History
The plaintiff filed Summary Suit No.3082 of 2004. The defendant appeared and filed an affidavit in support of his application for leave to defend. The plaintiff took out Summons for Judgment No.517 of 2005, which was heard and allowed by the court on 14th December 2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order 37
