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Property & Civil Litigation · 14 October 2026

Disputed Basis of Cheques Is a Triable Issue: J&K High Court Upholds Leave to Defend ₹1.35 Crore Suit

Source: Originally reported by LiveLaw, LiveLaw (2) and supremetoday.ai. This article has been independently researched and rewritten in full by S&S Co. Advocates & Solicitors for informational purposes: it is not a reproduction of the original reports. Readers are encouraged to consult the original sources and the underlying judgement directly.

Mushtaq Ahmad Rafiqee sued Mohammad Amin Wani and others under Order XXXVII of the Code of Civil Procedure, the summary procedure meant for cases built on negotiable instruments and similar documents where the defendant is not normally allowed to drag out a trial on thin excuses. His suit sought recovery of about ₹1.35 crore on the strength of cheques issued by the defendants. On the face of it, this looked like exactly the kind of claim the summary suit procedure exists for: cheques issued, cheques dishonoured, money due. Order XXXVII exists precisely to stop a defendant who has no real answer from buying time through a full trial, and ordinarily a plaintiff holding dishonoured cheques starts from a position of real strength, since the burden shifts quickly to the defendant to show why the suit should not be decreed on the documents alone.

The defendants told a different story about how those cheques came to exist. Rafiqee's case was that the parties had agreed to sell four kanals of land at Rawalpora in Srinagar for ₹4 crore, and that the cheques represented part of that consideration, most of which bounced when presented. The defendants said there was no concluded sale at all. Their version was that the land was State land to begin with, that Rafiqee had no title to sell it, and that the cheques were handed over not as sale consideration but as a kind of security or token tied to an understanding that Rafiqee would help locate buyers for the property, an arrangement that never produced a completed sale.

A trial court, the 3rd Additional District Judge at Srinagar hearing the summary suit, found enough in that defence to grant the defendants unconditional leave to defend rather than deciding the matter on the strength of the cheques alone. Rafiqee challenged that order before the High Court under Article 227 of the Constitution, the supervisory jurisdiction courts use sparingly and only where a subordinate court's order suffers from a clear jurisdictional or legal error, not merely a different reading of the facts. That is itself a high bar to clear in a leave-to-defend matter, since a trial judge's assessment of whether a defence crosses the triable-issue threshold is squarely a question of fact and discretion, the kind of call a supervisory court is usually reluctant to second-guess unless the trial court has plainly misapplied the Order XXXVII test itself.

Justice Rajnesh Oswal declined to interfere. The reasoning turned on what Order XXXVII actually tests at the leave stage: not whether the defendant will succeed in the end, but whether the defence raises a triable issue rather than one that is illusory, sham or practically impossible to believe. Where the very basis on which the cheques came to be issued is itself disputed, and that dispute rests on something more than a bare denial, the question of whether the cheques were issued in discharge of a legally enforceable debt stops being a formality and becomes exactly the kind of triable issue a trial court is entitled to send for evidence rather than decide on affidavits.

The Court was equally clear that this did not amount to rewarding a defendant for inventing a story at the last minute. The defence here was not the thin kind of denial courts routinely reject at the leave stage, such as a bare claim that signatures were forged with no supporting material. It was tied to a concrete and checkable factual claim, that the land underlying the alleged sale was State property outside Rafiqee's capacity to sell, which is the sort of assertion a court can test through revenue records and other documentary evidence rather than dismiss as fanciful.

Expedited recovery through Order XXXVII only works if the paper trail is clean. The moment a defendant can point to cogent material suggesting the underlying transaction was never what the cheques appear to show, a plaintiff holding dishonoured cheques loses the shortcut and has to prove the debt the ordinary way. For a property dispute dressed up as a cheque recovery suit, which is a common enough device in land transactions gone wrong, this order is a reminder that the summary procedure will not rescue a claim once the other side can genuinely put the underlying deal itself in issue. Parties who route a disputed land payment through cheques rather than a registered sale deed, hoping the negotiable instrument will carry the transaction through a court faster than a title dispute would, cannot assume that shortcut survives once the other side disputes ownership of the land itself with something more than a denial on affidavit.

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