IN THE HON’BLE COURT OF CIVIL JUDGE, WEST
DISTRICTS, TIS HAZARI COURTS, DELHI
CS SCJ 774 OF 2024
IN THE MATTER OF: -
RAJ KUMAR …PLAINTIFF
VERSUS
MAHAVIR SINGH …DEFENDANT
APPLICATION UNDER ORDER XXXVII RULE 3(5) OF
THE CODE OF CIVIL PROCEDURE, 1908, SEEKING
LEAVE TO DEFEND
MOST RESPECTFULLY SHEWETH: -
The Defendant respectfully submits the following application
seeking leave to defend the present suit filed by the Plaintiff under
Order XXXVII of the Code of Civil Procedure, 1908:
1. Preliminary Submissions
1.1 The present suit lacks the necessary ingredients
required for a summary suit under Order XXXVII and
raises triable issues necessitating a full trial.
1.2 The Plaintiff has deliberately suppressed material facts
and relevant legal principles, thereby attempting to
obtain an undue advantage through this suit.
2. Facts and Disputes
2.1 Loan Amount and Payments:
The Plaintiff alleges a loan of ₹2,93,000.00 (Two Lakh
Ninety-Three Thousand Rupees and Zero Paisa Only)
remains outstanding. However, the Plaintiff
deliberately omits to mention that the total loan amount
was ₹7,00,000.00 (Seven Lakh Rupees and Zero Paisa
Only), out of which the Defendant has already repaid a
substantial sum of ₹4,47,000 through bank transfers
and other modes, leaving a correct outstanding balance
of only ₹2,53,000.00 (Two Lakh Fifty-Three Thousand
Rupees and Zero Paisa Only). This repayment directly
contradicts the Plaintiff's claim and leaves a correct
outstanding balance of only ₹2,53,000.00 (Two Lakh
Fifty-Three Thousand Rupees and Zero Paisa Only).
2.2 Supporting Evidence:
The Defendant possesses documented proof of all
payments made to the Plaintiff, including the most
recent payments dated:
• 09.01.2024: ₹10,000 (Ten Thousand Rupees)
• 05.12.2023: ₹10,000 (Ten Thousand Rupees)
• 16.08.2023: ₹5,000 (Five Thousand Rupees)
• 11.07.2023: ₹5,000 (Five Thousand Rupees)
• 13.02.2023: ₹10,000 (Ten Thousand Rupees)
These payments made by Defendant on above
mentioned dates clearly contradicts the Plaintiff’s
claim that no payments were made after the issuance
of cheque.
2.3 Contradictory Assertions by Plaintiff:
The Plaintiff alleges that the Defendant failed to make
any repayments while simultaneously acknowledging
that the Defendant requested holding the cheque in
question for payment via RTGS. This creates an
inherent contradiction in the Plaintiff's narrative and
raises a genuine dispute regarding the outstanding
liability.
3. Improper Framing of the Suit
3.1 The Plaintiff has failed to disclose any legal basis to
claim interest at 18% per annum, which is exorbitant
and arbitrary, in the absence of any written agreement
or contractual stipulation.
3.2 The Plaintiff’s reliance on a cheque, unsupported by
independent documentary evidence such as a
promissory note, loan agreement, or acknowledgment
of debt, does not meet the evidentiary threshold under
Order XXXVII.
4. Grounds for Leave to Defend
4.1 Substantial Dispute Regarding Outstanding
Amount:
The Defendant has already made substantial
repayments totalling ₹4,47,000.00 (Four Lakh Forty-
Seven Thousand Rupees and Zero Paisa Only), leaving
only ₹2,53,000.00 (Two Lakh Fifty-Three Thousand
Rupees and Zero Paisa Only) as the correct outstanding
balance. The Plaintiff’s inflated claim of ₹2,93,000.00
(Two Lakh Ninety-Three Thousand Rupees and Zero
Paisa Only) is misleading and raises a bona fide triable
issue.
4.2 Absence of Independent Documentary Evidence:
The Plaintiff has failed to produce any documentary
evidence such as a loan agreement, promissory note, or
acknowledgment of debt to support the claim. In the
absence of such evidence, the suit does not meet the
requirements of a summary proceeding under Order
XXXVII.
4.3 Cheque Issued as Security:
The cheque relied upon by the Plaintiff was issued as a
security instrument and not in discharge of an admitted
debt. Courts have consistently held that cheques issued
as security cannot be equated with those issued for
repayment of a legally enforceable debt or liability.
4.4 Contradictory Pleadings:
The Plaintiff’s own admissions regarding the
Defendant’s request to hold the cheque for RTGS
payment contradict the claim that the cheque was
issued to discharge liability. This inconsistency further
strengthens the Defendant’s position that the matter
requires adjudication.
4.5 Discrepancy in Interest Claimed
The Plaintiff has made inconsistent claims regarding
the interest sought. In the title of the suit, the Plaintiff
demands interest at 12% per annum, whereas in the
prayer, an interest rate of 18% per annum is sought.
Such inconsistency demonstrates a lack of bona fide
intent and clarity in the Plaintiff’s case. It further raises
a triable issue as to the basis, validity, and
enforceability of the interest claimed.
4.6 Legal Precedent Supporting Leave to Defend:
It is consistently held that leave to defend must be
granted if the Defendant raises triable issues; Raises a
plausible defence; Demonstrates a bona fide dispute
even if the defence appears weak.
In the present case, the Defendant has raised
substantial triable issues, necessitating a full trial to
ascertain the correct outstanding amount, if any.
PRAYER
In view of the above facts, submissions, and triable issues raised,
the Defendant respectfully prays that this Hon’ble Court may:
a) Grant leave to defend the present suit in its entirety;
b) Pass such other or further orders as may be deemed fit and
proper in the interest of justice.
