TaxTMI 
TaxTMI 
2018 (11) TMI 680
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....No. 46734/2018(stay) 3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 26.03.2018 by which trial court has dismissed the Leave to Defend application filed by the appellant/defendant under Order XXXVII Rule 3(5) CPC and has decreed the suit filed by the respondent/plaintiff under Order XXXVII CPC for recovery of Rs. 4.38 lakhs on the basis of a dishonored cheque. 4. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that the appellant/defendant took a friendly loan of Rs. 3 lakhs from the respondent/plaintiff on 05.10.2014. The loan amount was secured by a Post-Dated Cheque dated ....
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....o as 'N.I. Act'), the respondent/plaintiff when was cross-examined on 10.04.2017, he could not give proper answers as to how he had arranged the amount of Rs. 3 lakhs for being given as loan by respondent/plaintiff to the appellant/defendant. Accordingly, the appellant/defendant prayed for unconditional leave to defend. 6. The principles with respect to grant of leave to defend are stated by the Supreme Court in its recent judgment in the case of IDBI Trusteeship Services Ltd. v. Hubtown Limited, (2017) 1 SCC 568 and the relevant paras of which judgment read as under:- "17. Accordingly, the principles stated in paragraph 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3, and the binding decision of four ....
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....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 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." 7. It is therefore seen that in case the defence is found to be frivolous or vexatious or not raising a triable issue, thus leave to defend cannot be granted. 8. Trial court in my opi....