Interim Order 11

Order Details: COPY OF ORDER
Pdf Text: 19 CS SCJ 1805/25
DANISH Vs. MOHD NAZRUL
08.07.2026
Present : Mr. Shuaib, Ld. counsel for plaintiff.
None for defendant.
Put up for orders at 3:00pm.
(Raghav Sharma)
CJ-07(C)/THC/Delhi/08.07.2026
At 3:00pm
Present : None for parties.
ORDER
1. Today, the matter is scheduled for order on application for
leave to defend filed by defendant.
2. Before deciding the application, the case of plaintiff is
required to be noted in brief. The case of plaintiff is that he
and defendant are neighbors and known to each other. In
December 2024, defendant requested for grant of loan of
Rs.3,00,000/- as friendly loan citing his needs and
promised to return the same within 6-7 months. Plaintiff
gave loan of Rs. 2,50,000/- to defendant on 15.12.24.
Defendant issued a cheque of same amount for returning
the said amount. The said cheque was deposited in Bank in
July 2025 and the same returned dishonored with remark
‘funds insufficient’. Thereafter, plaintiff requested for
return of loan amount, however, defendant did not return
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the loan. Legal notice was issued by plaintiff, whereafter
present case has been filed.
3. In his leave to defend application, defendant has taken the
defence that the claim of plaintiff of loan being taken by
him in 2024 is a false claim rather the loan was taken in
2023 and the same has been duly returned through various
online payments dt. 30.10.23, 27.11.23 and 16.12.24
through account of his wife and through cash payments on
05.11.23, 05.01.24 and 24.01.24. He has further stated that
the impugned cheque was given as post dated cheque as a
security, which the plaintiff did not return despite request
after complete repayment of loan amount. Defendant has
claimed that plaintiff has misused the cheque which was
given as a surety after repayment of loan amount. He has
also taken the defence that plaintiff has not filed any proof
of loan being given in 2024 alongwith his plaint.
4. Before deciding the application, it would be beneficial to
recapitulate the law on consideration on leave to defend of
defendant. In
Santosh Kumar v. Mool Singh, AIR 1958 SC
321, the question of grant of leave to defend was
considered and it was held that once it was found that there
was a triable issue, leave should be given unconditionally;
that the test for determining whether there was a real and
not a sham defence was whether the facts alleged by the
defendant would, if established, be a good defence; that the
court could not go into the question whether the facts
alleged by the defendant were true or not and that would
arise only after the leave was granted and at the trial; and
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that the condition as to security could be imposed if the
court was of the opinion that the defence was frivolous and
untenable and put forward with the view to prolong the
suit. For the purpose of granting leave to defend in
summary suits, the court is merely to see whether the
defence raised by defendant is substantial with the
possibility of the right of the plaintiff being defeated. As to
when leave to defend is to be granted, the basic judgment
in this regard is of
M/s Mechalec Engineers &
Manufacturers v. M/s Basic Equipment Corporation, AIR
1977 SC 577
. In Para 8, the Hon'ble Apex court has held as
follows:
“
In Smt. Kiranmoyee Dassi and Anr. v. Dr. J.
Chatterjee 49 C.W.N. 246
, Das. J., after a
comprehensive review of authorities on the subject,
stated the principles applicable to cases covered by
Order 37 C.P.C. in the form of the following
propositions (at p. 253):
(a) If the Defendant satisfies the Court that he has a
good defence to the claim on its merits the plaintiff is
not entitled to leave to sign judgment and the
Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating
that he has a fair or bona fide or reasonable defence
although not a positively good defence the plaintiff is
not entitled to sign judgment and the Defendant is
entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be
deemed sufficient to entitle him to defend, that is to
say, although the affidavit does not positively and
immediately make it clear that he has a defence, yet,
shows such a state of facts as leads to the inference
that at the trial of the action he may be able to
establish a defence to the plaintiff's claim the Plaintiff
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is not entitled to judgment and the Defendant is
entitled to leave to defend but in such a case the Court
may in its discretion impose conditions as to the time
or mode of trial but not as to payment into Court or
furnishing security.
(d) If the Defendant has no defence or the defence
set up is illusory or sham or practically moonshine
then ordinarily the Plaintiff is entitled to leave to sign
judgment and the Defendant is not entitled to leave to
defend.
(e) If the Defendant has no defence or the defence is
illusory or sham or practically moonshine then al-
though ordinarily the Plaintiff is entitled to leave to
sign judgment, the Court may protect the Plaintiff by
only allowing the defence to proceed if the amount
claimed is paid into Court or otherwise secured and
give leave to the Defendant on such condition, and
thereby show mercy to the Defendant by enabling him
to try to prove a defence.”
5. The defence taken by the defendant herein is not frivolous
or vexatious rather the same is cogent and a plausible
defence which is based on contentious facts raised by
defendant. The defence raised is a good defence given the
defendant has taken objection that there is no proof with
plaintiff that loan was ever given to defendant in 2024 and
also for the reason that defendant has claimed that loan
was taken in year 2023 and the same has been returned
through online payments from his wife’s bank account and
by cash payments in year 2023 and 2024 itself. The
defence taken by the defendant can not be rejected
summarily given it is based on contentious facts. Denial of
such an opportunity would be contrary to fair opportunity
and justice which this Court is bound to afford to every
party.
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6. With above reasons, the application is hereby allowed.
7. Let WS be filed, subject to limitation period with advance
copy to opposite side against receipt, after which,
replication, if any, be filed on the NDOH with advance
copy to opposite said against receipt at least 7 days prior to
NDOH.
8. List for completion of pleadings/further proceedings on
19.08.2026.
(Raghav Sharma)
CJ-07(C)/THC/Delhi/08.07.2026
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