Judgment:
R.S. Sodhi J.
1. This petition is directed against the judgment dated 29.7.2003 passed by the Civil Judge, Delhi, in Suit No. 275/2002 whereby the learned Judge has held that 'the suit under Order 37 CPC is based on the cheques, the original cheque dated 24.8.1999 issued by the defendant has been filed on record, the suit filed by the plaintiff is within limitation and no relief has been claimed which does not fall within the ambit of Order 37 CPC. Accordingly, the suit of the plaintiff is decreed for a sum of Rs. 1,77,155/- with interest @ 10 per cent from the date of filing of the suit till the date of decree as the transaction is commercial in nature.
2. Brief facts of the case, as have been noted by the learned Civil Judge, are -
The brief facts leading to the present application are that plaintiff filed a suit Under Order 37 Civil Procedure Code for recovery of Rs. 1,77,155/- along with interest @ 20% per annum from the date of filing the suit till passing the decree. The brief facts of the plaintiff's case are that the plaintiff is carrying on a business of foreign exchange and is also working as tour operator and travel agent. The defendant No. 2 approached the plaintiff and represented himself as one of the Director of defendant No. 1. The defendant No. 1 through defendant No. 2 has been paying Air tickets from the plaintiff regularly. On 13.08.1999 the defendant No. 2 got Air ticket bearing No. 6894342742 from the plaintiff for London. The plaintiff raised Bill No. I-0653 for Rs. 87,379/- dated 13.08.1999 for the aforesaid air tickets.
It is further alleged by the plaintiff that on 24.8.1999 the defendant No. 1 through defendant No. 2 again approached the plaintiff's company for buying the Air tickets from Delhi to London and return. The official of the plaintiff company asked the defendant No. 2 about the outstanding amount as well as for the advance amount for the demanded air ticket. Accordingly, the defendant No. 2 issued a cheque of Rs. 1,31,227/- bearing No. 596945, drawn on Central Bank of India, Ashoka Hotel, New Delhi dated 24.8.1999. Thereafter on 27.08.1999 the plaintiff's official staff delivered the air ticket to the defendant No. 2 along with plaintiff's bill No. 707 for Rs. 90,806/-. Defendant No. 2 also promised to make the payment of the balance amount by getting Rs. 10,000/- US Dollars transferred to the plaintiff bank account from Royal Bank of Canada, but the same was not transferred by the defendant. It was further submitted by the plaintiff that defendant No. 2 kept on requesting the plaintiff not to present the cheque for encashment because defendant No. 1 and 2 were financially tight and in these circumstances the aforesaid cheques of Rs. 1,31,227/- become time barred. The defendant No. 2 also failed to transfer Rs. 10,000/- US Dollars to the account of the plaintiff.
On 24.03.2001 the plaintiff sent a legal notice to the defendant but the said notice sent through registered post came back with an endorsement of refusal. Accordingly the present suit was filed by the plaintiff for the recovery of Rs. 1,77,155/- based on cheque No. 596945 dated 24.08.1999 issued by defendant No. 2.
The defendant was served and filed their appearance on 29.11.2001. Thereafter, plaintiff got the summons for judgment issued which was duly served on the defendants on 11.1.2001.
3. The petitioner filed an application for leave to defend which purportedly sought to raise triable issues, namely, that the amount shown in the post-dated cheque which was issued, was in lieu of air tickets purchased and that the respondent herein had been pressurising the petitioner to make payment in foreign exchange and, thereforee, did not deposit the cheques. The trial court, upon appreciation of the material before it, came to the conclusion that the suit could be decreed under Order 37 CPC.
4. It is contended by counsel for the petitioner that the triable issues were raised inasmuch as the debt had been discharged in cash, which could only be proved by leading evidence.
5. I have heard counsel for the parties and gone through the order under challenge as also the material placed before me. It appears to me that the reasoning of the trial court, while decreeing the suit, suffers from no infirmity. The stand taken by the petitioner that he has made cash payments to the plaintiff to the tune of Rs. 1,32,000/- appears to be a moonshine defense. There is no basis laid down in support of such a contention and is merely a bald assertion. It is well settled that in an application to lead defense, the defense must be clearly set out and supported by any available material. A mere shot in the dark will not do. In the present case, it is not even mentioned as to when the money was paid in cash, to whom it was paid in cash, from where it was drawn etc.
6. In that view of the matter, I am of the opinion that the judgment under challenge cannot be disturbed. The petition and the pending applications are dismissed.