Interim Order 8

Order Details: COPY OF ORDER
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21 CS 918/23
SUNITA GARG Vs. VIKAS KUMAR GOYAL
CNR No. DLSH01-007868-2023
10.12.2025
Present : Sh. Kushagra Goel, Ld. Counsel for Plaintiff.
Sh. Rahul Lal Akhriya and Sh. Deepak Arora, Ld. Counsel
for Defendant.
Arguments heard on leave to defend application. Record
perused.
Put up for Orders at 4.00 PM.
District Judge-03 (Shahdara),
KKD Courts, Delhi.
At 4.00 PM
A. ORDER
1. This Order shall dispose off an application of Defendant
seeking leave to defend the suit.
2. Arguments already addressed by ld. Counsels for parties.
3. In brief, the case of Plaintiff is as follows:-
(a). Defendant approached the plaintiff for friendly loan of
Rs.12,00,000/- and an Agreement dated 04.03.2022 was executed in this
regard. Defendant in discharge of said liability had issued 10 cheques
(detailed in para no. 4 of the plaint) in favour of the plaintiff;
(b). Plaintiff alleged that cheques amounting to Rs.9,00,000/-
has been dishonored.
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(c) . Plaintiff served legal notice dated 19.05.2023 to the
defendant, but despite service of same, defendant has not paid the
amount nor replied the same.
Hence, the present suit.
4. Defendant in his leave to defend application took following
pleas:-
 that Plaintiff has concealed the material facts;
 that Plaintiff never met with the defendant prior to filing of case
under Section 138 NI Act. Defendant has never had any business
dealings with the plaintiff, rather it was Sh. Sanjay Kumar Garg,
husband of the plaintiff, who represented himself as ‘ proprietor
of M/s. Shivam Electricals’;
 that Defendant took the loan of Rs.10,00,000/- from husband of
plaintiff and not from the plaintiff and against which, Defendant
had issued some blank signed security cheques. Defendant
alleged that Agreement dated 04.03.2022 was executed leaving
space of date of cheques as blank.
 That it was agreed between the husband of plaintiff and the
defendant and defendant has to pay bank the said loan amount of
Rs.10 lakhs with interest i.e. total Rs.12 lakhs in installments of
Rs.10,000/- per day for 10 days to the plaintiff.
 Defendant alleged that he refunded the loan amount in cash to
the husband of plaintiff, which used to be collected by Sh. Amit
@ Johny i.e. nephew of plaintiff s he is residing nearby and
sometimes payments were made through PayTM.
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 Defendant alleged that all the cheques in questions were blank
signed cheques and were given as security cheques.
 Defendant alleged that he was regularly making the payment of
Rs.10,000/- per day and is maintaining a register.
 Defendant alleged that as per the Record maintained by him, only
an amount of Rs.1,34,000/- is due and he has already refunded an
amount of Rs.10,66,000/-.
 Defendant alleged that Plaintiff and her husband have done the
forgery by putting dates on the cheques and in the Mortgage
Agreement dated 04.03.2024. There is overwriting in the dates
mentioned in the mortgage Agreement.
 Defendant alleged that the date of Agreement is 04.03.2022,
but plaintiff has put the date on some of cheques prior to that.
Defendant alleged that plaintiff and her husabnd had put date on
one of the heque as ‘05.03.2022’ i.e. the very next date of
agreement and the amount of Rs.50,000/- which is totally
unbelievable. The Agreement clearly shows that amount is to be
refunded on daily basis @Rs.10,000/- per day for 120 days, then,
why defendant will issue a cheque of Rs.50,000/- very next day.
 Defendant prayed that he raised many triable issues and pryaed
for grant of unconditional leave to defend.
5. Plaintiff filed reply to leave to defend application, wherein
he denied the contents of leave to defend application and prayed that
suit may be decreed in favour of the plaintiff. Plaintiff submits that there
was no such mention of repayment @ Rs.10,000/- per day for 120 days
in the agreement.
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6. Defendant also filed rejoinder to the said reply of the
plaintiff and reiterated the averments made in the leave to defend
application.
7. I have perused the material available on record.
8. Law with regarding to leave to defend has been stated by
the Hon’ble supreme court in judgment tittled as IDBI Trusteeship
Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568 and it read as
follows :
“17. Accordingly, the principles stated in para 8 of Mechelec case
[Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976)
4 SCC 687] will now stand superseded, given the amendment of Order 37
Rule 3 and the binding decision of four Judges in Milkhiram case
[Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 :
(1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair
or reasonable defence, although not a positively good defence, the plaintiff
is not entitled to sign judgment, and the defendant is ordinarily entitled to
unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with
the trial Judge about the defendant's good faith, or the genuineness of the
triable issues, the trial Judge may impose conditions both as to time or
mode of trial, as well as payment into court or furnishing security. Care
must be taken to see that the object of the provisions to assist expeditious
disposal of commercial causes is not defeated. Care must also be taken to
see that such triable issues are not shut out by unduly severe orders as to
deposit or security.
17.4. If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode of
trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or security or
both can extend to the entire principal sum together with such interest as
the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no
genuine triable issues, and the court finds such defence to be frivolous or
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vexatious, then leave to defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by
the defendant to be due from him, leave to defend the suit, (even if triable
issues or a substantial defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the defendant in court.”
9. In the present matter, Defendant has admitted that
Agreement dated 04.03.2022 was executed between the parties.
Issuance of cheques is also admitted by the defendant, but as security
cheques. Agreement in question shows that there is overwriting
regarding mentioning of ‘dates’ in para no. 2 of the said Agreement.
Defendant submits that only Rs.1,34,000/- is due and he has already
refunded an amount of Rs.10,66,000/-. Further, in support of his
defence, Defendant has placed on record copy of relevant page of such
record and the PayTM payment receipt. The plaintiff in reply has not
specifically denied that Sh. Amit @Johny is his nephew through whom,
the Defendant has alleged that repayment of loan was made.
10. Record reveals that some of the alleged cheques
mentioned in the agreement dated 04.03.2022 are in fact dated prior to
the date of agreement. The plaintiff has not been able to explain the
same, which indicates that Plaintiff has not disclosed the complete facts
in the plaint.
However, Defendant has admitted that he is still liable to
pay Rs.1,34,000/- to the plaintiff.
11. Thus, in view of the above discussion, the Defendant has
been able to raise certain triable issues regarding the circumstances
under which the dates are mentioned on the Cheques and alleged
misuse of security cheques by the plaintiff. The present leave to defend
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application of the Defendant is hereby allowed and Defendant is granted
leave to defend the suit.
Defendant shall file written statement within 30 days with
copy to the Plaintiff, who shall file replication within 15 days thereafter
with copy to other side.
Ordered accordingly.
Nothing discussed above shall have any bearing on the
merits of the case.
B. In view of categorical admission by the Defendant that he
is still liable to pay Rs.1,34,000/- to the Plaintiff, a preliminary decree is
passed under Order XII Rule 6 CPC in the following manner:-
A decree of recovery of Rs.1,34,000/- (Rupees One lakh
Thirty Four Thousand only) is passed in favour of the plaintiff and
against the Defendant.
Preliminary Decree sheet be prepared accordingly.
Defendant is directed to pay the said amount of
Rs.1,34,000/- to the Plaintiff within 15 days from today through bank
transfer by way of Demand Draft, cheque or NEFT.
Put up for compliance as above and for completion of
pleadings, filing of affidavit regarding admission-denial of documents
and for framing of issues on 13.03.2026.
(MOHAMMAD EHTESHAM)
District Judge-03 (Shahdara),
KKD Courts, Delhi. 10.12.2025
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