In a summary suit, defendant is entitled to unconditional leave to defend only if triable issues or a substantial defense is raised

In a summary suit, if the defense taken by the defendant is substantial in nature or if the issues so raised appear to be genuine and triable, the Plaintiff will not be entitled to judgment and the Defendant will be granted unconditional leave to defend in the suit but where the defense taken by the Appellant was found to be false and vexatious wherein no bona fide triable issues were raised, leave to defend would not be granted.

This was held by the Hon’ble High Court of New Delhi in the matter of Ankit Sharma v. Shilpi Arora, RFA No. 887 of 2018, on 29^th October 2018.

Challenge:

The Appellant/Defendant filed an appeal against the decree of the Trial Court wherein the suit of the Respondent/Plaintiff filed under Order XXXVII of the Code of Civil Procedure, 1908 was decreed in favour of the Plaintiff after the application for leave to defend filed on behalf of the Appellant was dismissed. The said application was dismissed by the Trial Court on the ground that the signature on the said cheque and the account on which the cheque was issued and later dishonoured due to insufficiency of funds was of the Appellant.
The Appellant had pleaded certain facts for the first time before the Appellate Court, i.e. that various FIRs were registered against each other by the parties and as a result, the Appellant was also kidnapped, pleading for leave to defend her case. The Appellant Court had to decide whether there were any triable issues in the leave to defend of the Appellant.

Held:

The Hon’ble Court held that the facts pleaded for the first time before the Appellate Court cannot be looked into as none of the said facts were stated in the application of leave to defend filed before the Ld. Trial Court. Hence, new facts cannot be raised at the first appellate stage after the dismissal of the leave to defend.

Further, with respect to principles of what comprises “triable issues” in a suit under Order XXXVII, the Appellate Court reiterated the principles laid down by the Hon’ble Supreme Court in IDBI Trusteeship Services Lts. V. Hubtown Ltd., (107) 1 SCC 568, wherein it was held that in case defendant has substantial defense, i.e. a defense likely to succeed, or raises triable issues, defined as a fair or reasonable defense; the defendant is entitled to unconditional leave to defend the suit.

The defense taken by the Appellant was found to be false and vexatious wherein no bona fide triable issues were raised, therefore, the present appeal was dismissed.