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Commercial Lawyer: Supreme Court grants unconditional leave to defend in summary suit - holds signatures and contents of the cheques are in different handwriting.

Supreme Court of India 
(Justice Navin Sinha and Justice Ashok Bhushan)
The issue of grant of conditional leave to defend by the courts below to the appellant/defendant was in issue before the SC {Sudin Dilip Talaulikar v. Polycap Wires Pvt. Ltd. & Ors.}; the said issue was decided in favour of the appellant by setting aside the orders of the High Court and Trial Court and by granting unconditional leave to defend.
It was held by the SC that it is strange that the commercial dealings between the parties ended on 03/06/2011. But the outstanding payment in respect of the same came to be made by cheque as late as 01/03/2014, and also the signatures and the contents of the cheques are in different writings. 
While granting unconditional leave to defend, it was held by the SC:


"14.In our opinion, both the Civil Judge and the High Court have posed unto themselves the wrong question and have therefore misdirected themselves in application of the above principles by granting conditional leave to defend without properly adverting and referring to the facts of the case and the materials on record. The fact that there was commercial dealing between the parties was not in issue at all. According to the plaint of the respondent, commercial dealings between the parties ended on 03.06.2011. It stands to reason why outstanding payment in respect of the same came to be made by cheque as late as 01.03.2014. It does not appeal to logic or reason much less to the usual practice in commercial dealings. In any event the respondent has not furnished any explanation with regard to the same. At this stage it becomes necessary to notice the contention of the appellant that the signatures and the contents of the  cheques  are   in   different   writings. The respondent had the option to institute a summary suit at the very inception of the dispute. But it consciously opted for a prosecution under the Act which undoubtedly   was  a  more efficacious remedy for recovery of any specified amount of a dishonoured   instrument   raising   a   presumption   against   the drawer, as in a summary suit the possibility of leave to defend could not be completely ruled out, in which case the recovery gets delayed and protracted.

15. Significantly on 29.10.2015, in the prosecution instituted by the   respondent   under   the   Act,   the   court   required the respondent to file certain additional  documents   because  the appellant denied the existence of any legal liability for any sum due. It is only thereafter that the Summary Suit was instituted on 24.11.2015.The prosecution under the   Act   was subsequently unconditionally withdrawn on 14.12.2015. These facts are not in dispute and are clearly discernible from the records. This coupled   with   the   specific  contention  of  the appellant, not denied by the respondent, that it had returned defective goods and paid the balance dues of Rs.5,00,000/­, we find the conclusion to grant leave to defend as perfectly justified.

16. But the defence raised by the appellant in the aforesaid background was certainly not a sham or a moonshine much less frivolous or vexatious and neither can it be called improbable..........."

The appeal was allowed by the SC after granting unconditional leave to defend.

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