Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Civ Suit 660/24
VIPIN GUPTA Vs. ARVIND KUMAR GUPTA
12.11.2025
Present:- Mr. Harmesh Kumar and Mr. Hritik Raj, Ld.
Counsels for the plaintiff.
Mr. Mohd. Yusuf, Ld. Counsel for the defendant
alongwith defendant.
1. An application under Order XXXVII Rule 3(5) of the
Code of Civil Procedure, 1908 (CPC) alongwith an
application seeking condonation of delay in filing the same,
has been filed on behalf of the defendant. Copy supplied to
other side.
2. The application seeking condonation of delay has
been taken up for consideration and disposal.
3. Mr. Yusuf, Ld. Counsel for the defendant, submits
that during the inspection of the judicial record on
03.09.2025, the defendant came to know that the
summons for judgment had been served on his younger
brother, Mr. Pradeep Gupta, on 05.05.2025. He contends
that Mr. Pradeep Gupta failed to inform the defendant
about the said service, due to which the application
seeking leave to defend could not be filed within the
prescribed period. He further asserts that the delay in filing
the application is neither intentional nor deliberate.
4. Mr. Kumar, Ld. Counsel for the plaintiff, opposes the
application, arguing that the explanation offered by the
defendant is unsatisfactory as service was duly effected on
defendant’s brother on 05.05.2025. He submits that
Cont..
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allowing such an application would defeat the very purpose
of the summary procedure under Order XXXVII CPC.
Without prejudice to his objections, the counsel for plaintiff
submits that if the delay is to be condoned, it should be
done only upon the imposition of exemplary costs.
5. I have heard the submissions and perused the
record. Order XXXVII Rule 3(7) CPC empowers the court
to excuse the delay in entering an appearance or in
applying for leave to defend the suit if sufficient cause is
shown by the defendant. It has been held in a catena of
judgments that ‘sufficient cause’ must be construed liberally
and there should not be any negligence of any action or
want of bonafide imputable to the party seeking
condonation1.
6. In the present matter, as per the process server’s
report, the summons for judgment were served upon the
defendant’s younger brother on 05.05.2025. The defendant
disputes this service asserting that his younger brother did
not inform him about the same and their relations are
strained. This objection as to non receipt of summons for
judgment was taken on the very first date fixed after
issuance of summons for judgment i.e. 01.09.2025 and the
leave to defend application was filed on 06.09.2025.
Considering the overall facts and circumstances, the delay
in filing the leave to defend application is condoned subject
to a cost of Rs. 2000/- to be paid to plaintiff. The application
is accordingly disposed of.
Cont..
1 Escorts Finance Ltd. Vs. Nielcon Ltd. 2000 SCC OnLine Del 39.
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7. Arguments on leave to defend application heard. List
for orders at 4:00 p.m.
(AYUSH SHARMA)
CIVIL JUDGE/EAST
KKD COURTS/12.11.2025
AT 4:00 PM
Present: None.
1. This is a suit under Order XXXVII of CPC filed for
recovery of sum of Rs. 2,00,000/-, alongwith pendente lite
and future interest @ 24% per annum alongwith costs.
BRIEF FACTS
2. The brief facts as disclosed in the plaint are:
2.1 The plaintiff and the defendant shared cordial and
friendly relations. In September, 2023, the defendant
approached the plaintiff seeking a financial help of Rs.
2,00,000/- on account of some financial difficulties. The
defendant assured the plaintiff that the said amount would
be repaid within a few months. Relying on their friendship,
the plaintiff arranged and advanced a cash loan of Rs.
2,00,000/- to the defendant in September, 2023.
2.2 As per the agreed repayment schedule, the plaintiff
approached the defendant for repayment in April, 2024. In
discharge of his liability, the defendant issued two
cheques- cheque no. 493397 dated 10.05.2024 for Rs.
1,00,000/- and cheque no. 493396 dated 29.05.2024 for
Rs. 1,00,000/-, both drawn on Punjab National Bank,
Cont..
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Madhuban, Delhi. However, when the plaintiff presented
the said cheques for encashment as per the defendant’s
instructions, both were returned unpaid.
2.3 The plaintiff, thereafter, contacted the defendant and
requested repayment of the loan amount but the defendant
refused. On 22.06.2024, the plaintiff issued a legal notice
to the defendant demanding repayment but the defendant
neither replied nor complied with the notice. Hence, the
present suit.
3. Summons under Order XXXVII CPC were duly
served upon the defendant on 30.11.2024. The defendant
entered appearance under Order XXXVII Rule 3(1) CPC
within the prescribed time on 09.12.2024. Subsequently,
summons for judgment was served upon the defendant on
05.05.2025 and the application seeking leave to defend
alongwith an application for condonation of delay in filing
the same was filed on 06.09.2025. The delay in filing the
application seeking leave to defend was condoned vide
today’s order subject to payment of costs of Rs. 2000/-.
4. In his application seeking leave to defend, the
defendant has raised the following contentions:
4.1 The suit is based on false, fabricated and
manipulated facts and has been filed with the sole intention
of harassing and extorting money from the defendant.
4.2 While it is admitted that the plaintiff and defendant
shared friendly relations, it was in fact the defendant who
had extended financial assistance to the plaintiff to the tune
of Rs. 1,00,000/-, partly in cash and partly through bank
Cont..
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transfer to the plaintiff’s account. The plaintiff instead of
repaying the said amount has concocted a false story and
filed the present suit.
4.3 The defendant categorically denies having borrowed
any sum from the plaintiff in September 2023, whether in
cash or otherwise and the issuance of cheques bearing
nos. 493397 and 493396. He claims that the signatures on
the said cheques do not belong to him and the same have
been forged.
4.4 The cheques in question dated 10.05.2024 and
29.05.2024 have been alleged to have been drawn on
Punjab National Bank, Madhuban, Delhi from account no.
2572000101918756. However, this account was closed in
the year 2019 much prior to the date of issuance of the
cheques.
4.5 The cheques have been misused by the plaintiff. This
is evident by the bank return memos which specifies the
reason for dishonour as ‘cheque irregularly drawn’ and ‘not
a valid instrument’.
SUBMISSIONS
5. Mr. Harmesh Kumar, Ld. Counsel for the plaintiff,
argued that the defendant had borrowed a sum of Rs.
2,00,000/- from the plaintiff in September, 2023 and, in
April, 2024 issued two cheques of Rs. 1,00,000/- each,
both of which were dishonoured upon presentation. He
submitted that the issuance of these cheques has not been
denied by the defendant. He further contended that the
defendant has failed to raise any genuine or substantial
Cont...
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triable issue and therefore, the application for leave to
defend deserves to be rejected.
6. On the other hand, Mr. Mohd. Yusuf, Ld. Counsel for
the defendant, argued that the defendant has categorically
denied having received any loan amount from the plaintiff
as well as the issuance and the signatures on the cheques
in question. He submitted that the transaction was, in fact,
the other way round, as it was the defendant who had
advanced the loan of Rs. 1,00,000/- to the plaintiff, partly in
cash and partly in account, on several occasions between
February, 2022 to July, 2023 which is substantiated from
banks statement filed on record. He contended that the
plaintiff has fabricated a false story to evade repayment of
the amount owed to the defendant. He further pointed out
that the bank account from which the cheques in question
have been issued was closed in 2019 well before the date
of issuance of the cheques. He argued that the application
raises several triable issues and the defendant is entitled to
unconditional leave to defend.
ANALYSIS AND REASONS
7. I have heard the submissions at length and perused
the material on record. The Hon’ble Supreme Court in IDBI
Trusteeship Services Ltd Vs. Hubtown Ltd.2 has
extensively considered the pre-amendment and post-
amendment provisions of Order XXXVII Rule 3 CPC and
found that the discretion exercised by the courts under
Cont...
2 (2017) 1 SCC 568
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Order XXXVII CPC to refuse leave to defend or to grant
unconditional or conditional leave to defend is a discretion
akin to Joseph’s multi-coloured coat—a large number of
baffling alternatives present themselves. It was also held
that at one end of the spectrum is unconditional leave to
defend, granted in all cases which present a substantial
defence, and at the other end of the spectrum are frivolous
or vexatious defenses, leading to refusal of leave to
defend. In between these two extremes are various kinds
of defenses raised, which capitulate conditional leave to
defend in most cases3.
8. The Hon’ble Supreme Court in BL Kashyap and
Sons Ltd Vs. JMS Steels and Power Corporation and
Anr.4, reiterated that grant of leave to defend is ordinarily
the rule and noted:
“33.1 As noticed, if the defendant satisfies the
court that he has substantial defence, i.e., a
defence which is likely to succeed, he is
entitled to unconditional leave to defend. In the
second eventuality, where the defendant raises
triable issues indicating a fair or bonafide or
reasonable defence, albeit not a positively good
defence, he would be ordinarily entitled to
unconditional leave to defend. In the third
eventuality, where the defendant raises triable
issues, but it remains doubtful if the defendant
is raising the same in good faith or about
genuineness of the issues, the trial court is
expected to balance the requirements of
expeditious disposal of commercial causes on
one hand and of not shutting out triable issues
Cont...
3 Rama Luthra Vs. Deepali Malik and Ors. 2025: DHC:7376
4 (2022) 3 SCC 294
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by unduly severe orders on the other.
Therefore, the trial court may impose conditions
both as to time or mode of trial as well as
payment into the court or furnishing security. In
the fourth eventuality, where the proposed
defence appears to be plausible but
improbable, heightened conditions may be
imposed as to the time or mode of trial as also
of payment into the court or furnishing security
or both, which may extend to the entire
principal sum together with just and requisite
interest.
33.3 Therefore, while dealing with an
application seeking leave to defend, it would
not be a correct approach to proceed as if
denying the leave is a rule or that the leave to
defend is to be granted only in exceptional
cases or only in cases where the defence
would appear to be a meritorious one. Even in
the case of raising of triable issues, with the
defendant indicating his having a fair or
reasonable defence, he is ordinarily entitled to
unconditional leave to defend unless there be
any strong reason to deny the leave. It gets
perforce reiterated that even if remains a
reasonable doubt about the probability of
defence, sterner or higher conditions as stated
above could be imposed while granting leave,
denying the leave would be ordinarily
countenance only in such cases where the
defendant fails to show any genuine triable
issue and the court finds the defence to be
frivolous or vexatious.”
(underlining added)
Cont...
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9. The Hon’ble High Court of Delhi in Vidya Projects
Pvt. Ltd. Vs. Essel Infra Projects Ltd. and Ors.5, held
that where the defendant discloses triable issues indicative
of a fair, bonafide, or a reasonable defence, the ordinary
course is to grant unconditional leave, save where
compelling and cogent reasons necessitate departure from
this norm. It was also held that even in instances where a
reasonable doubt persists regarding the plausibility of the
defence, the court may, in the interest of justice, impose
calibrated conditions, reserving outright refusal strictly for
those rare cases where no genuine triable issue is
demonstrated and the defence is manifestly frivolous and
vexatious. The relevant extract of the decision reads as
under:
“32. Where the Defendant discloses triable
issues indicative of a fair, bona fide, or
reasonable defence, the ordinary course is to
grant unconditional leave, save where
compelling and cogent reasons necessitate
departure from this norm.
33. Even in instances where a reasonable
doubt persists regarding the plausibility of the
defence, the Court may, in the interests of
justice, impose calibrated conditions, reserving
outright refusal strictly for those rare cases
where no genuine triable issue is demonstrated
and the defence is manifestly frivolous or
vexatious. Between the broad spectrum of
substantial defence and frivolous or vexatious
defence, there lies a myriad set of
circumstances which require the Court to enter
Cont...
5 2025:DHC:7172
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into a delicate judicial inquiry. These
circumstances evolve on a case-to-case basis,
and no amount of linguistic gymnastics could fit
these circumstances into rigid compartments.
Ultimately, the test is whether, on an overall
assessment of the case, a fair and reasonable
defence is in sight, which could only be
determined upon trial and appreciation of
evidence. If yes, the Court must not shut the
doors at the outset. However, depending on the
plausibility of the defence, conditions could be
imposed so as to safeguard the interests of the
plaintiff as well as to uphold the integrity of the
summary procedure. Thus, conditional leave
operates as an intermediate safeguard,
harmonising the imperatives of commercial
celerity with the principles of natural justice”.
(underlining added)
10. Applying the aforesaid ratio, the facts existing in the
present case need to be examined. The plaintiff asserts
that he advanced the loan of Rs. 2,00,000/- to the
defendant in September, 2023 and in repayment therefore,
the defendant issued two cheques in April, 2024, both of
which were dishonoured upon presentation. Conversely,
the defendant claims that it was, in fact, he who had
extended a loan of Rs. 1,00,000/- between February, 2022
and July, 2023 and that the present suit has been filed by
the plaintiff merely to evade repayment of that amount. The
defendant has further denied borrowing any money from
the plaintiff and has disputed the issuance as well as the
signatures on the cheques in question. He has also
Cont...
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asserted that the bank account from which the cheques in
question have been issued had been closed long ago in
2019, which is evident from the reasons given by the bank
for dishonour of cheques.
11. The rival assertions of both parties manifest two
conflicting narratives and thus, makes the dispute
unsuitable for summary determination at this stage. The
contentions raised by the defendant raise disputed
questions of fact which would require evidence for
determination. I am of the opinion that the defendant’s case
falls within the second category as conceived in paragraph
33.1 of the judgment of the Hon’ble Supreme Court in B.L.
Kashyap and Sons Ltd. (supra). Accordingly, the
application is allowed and the defendant is granted
unconditional leave to defend the present suit. The
application is accordingly disposed of.
12. The defendant shall file the written statement within a
period of four weeks from today.
13. The plaintiff is at liberty to file the replication after
receipt of copy of written statement with an advance copy
to other side.
14. List the matter for completion of pleadings/A/D of
documents/framing of issues on 28.01.2026.
(AYUSH SHARMA)
CIVIL JUDGE/EAST
KKD COURTS/12.11.2025
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