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SUBMISSIONS MADE ON BEHALF OF THE APPELLANT

9. Mr. Anil Mishra, learned counsel appearing for the Appellant has submitted that the learned Trial Court erroneously decreed the Civil Suit No. 381/2019 in favour of the Respondent, without giving due opportunity to the Appellant to defend the suit. Learned Counsel for the Appellant has submitted that the above mentioned suit was instituted under Order XXXVII of the CPC based on the subject cheque which was „stale/outdated‟ which means that the validity of the cheque had lapsed. It is argued by learned Counsel for the Appellant that a cheque which had been dishonoured by the reason of it being outdated or stale, cannot give rise to a suit for recovery under Order XXXVII CPC.

12. Ms. Chaitali Jain, learned counsel representing the Respondent, vehemently countered the arguments made on behalf of the Appellant by submitting that the Appellant cannot be permitted to raise any fresh plea at this stage. It is submitted that the Appellant failed to raise the issue with respect to the subject cheque being stale/outdated before the learned Trial Court. It is further submitted that there exists no averment in the Appellant‟s application seeking leave to defend with regard to the validity of the said cheque. Further, it has been submitted that such a plea has been raised for the first time before this Court, even when the litigation went on before the learned Trial Court for a considerable period of time where the Appellant was given adequate opportunity to represent her case. The Appellant is barred from taking any fresh plea under the Section 96 of the CPC which states that an appeal can be preferred only when there is a „question of law‟ emanating out of a decree in any suit.

25. The bank returned the said cheque undelivered on 26.07.2016 with an endorsement „instrument outdated/Stale‟. It is the case of the Respondent that she submitted the subject cheque for encashment on 18.07.2016, however, it was dishonoured because of the reason that the Appellant has deliberately issued a cheque without bar code and all such chequebooks without barcode were withdrawn by the bank. Since the subject cheque was not carrying bar code, the same was dishonoured with the comment „Instrument outdated/stale‟. Even to prove the said fact, evidence is required to be led.

26. It is the case of the Respondent that the Appellant never took objection qua the staleness of the subject cheque or non- maintainability of the suit on basis of stale cheque in her application seeking leave to defend. It is the case of the Respondent in the Plaint itself that the subject cheque was returned by the bank with a remark „outdated instrument /stale‟. Hence the factum of return of the cheque on the ground of „outdated instrument/stale‟ was there before the learned Trial Court. Whether a summary suit is to be entertained or not on the basis of a stale cheque is a legal issue which can be taken up at any stage of the proceedings. This Court in Baldev Singh (Supra) also had encountered with an identical plea and rejected the same, inter alia, observing as follows: