Case Note & Summary
The appellant-defendant, Vikram Trimbak Pawar, entered into an Agreement for Sale dated 23 November 2016 with the respondent-plaintiff, Technocrat Construction, for the purchase of Flat No.302 in Balram Building 'A' at Pune for a total consideration of Rs. 34,50,000. The defendant paid Rs. 2,00,000 by cheque at the time of agreement and subsequently paid a total of Rs. 7,50,000. The plaintiff claimed that the defendant failed to pay the balance of Rs. 27,00,000 towards consideration and an additional Rs. 3,00,000 towards MSEB and development charges, totalling Rs. 30,00,000. The plaintiff instituted Special Summary Suit No.235 of 2019 under Order 37 CPC for recovery of Rs. 37,36,000 including interest and notice charges. The defendant filed an application for leave to defend, contending that the building was unauthorised and that he had paid the entire consideration in cash. The Trial Court decreed the suit for Rs. 30,00,000 with interest at 6% per annum from the date of filing. The District Judge dismissed the appeal. In the second appeal, the High Court held that the defendant's defence was vague and did not raise a triable issue. The court noted that the defendant admitted the agreement and part payment but failed to provide any particulars of the alleged cash payments. The defence of unauthorised construction was not a valid ground to avoid payment of the agreed consideration, especially since the defendant had taken possession. The court found no substantial question of law and dismissed the appeal, confirming the decree.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 3 CPC - The defendant in a summary suit must disclose a triable issue or a substantial defence to obtain leave to defend; vague and unsubstantiated allegations of cash payments without particulars do not constitute a triable issue. (Paras 1-17)
B) Contract Law - Agreement for Sale - Balance Consideration - Specific Relief Act, 1963 - Where the defendant admits execution of the agreement and part payment, but claims full payment in cash without any documentary evidence, the court may decree the suit for the balance amount as claimed. (Paras 2-17)
C) Property Law - Unauthorised Construction - Defence in Summary Suit - The defence that the building is unauthorised and liable to demolition does not absolve the defendant from liability to pay the agreed consideration under the agreement for sale, especially when the defendant has taken possession. (Paras 4-17)
Issue of Consideration
Whether the defendant in a summary suit under Order 37 of the Code of Civil Procedure, 1908 is entitled to leave to defend on the basis of vague and unsubstantiated allegations of payment of balance consideration in cash, and whether the defence of unauthorised construction raises a triable issue.
Final Decision
The High Court dismissed the second appeal, confirming the decree passed by the Trial Court and affirmed by the District Judge. The court held that no substantial question of law arose and that the defendant's defence was not triable.
Law Points
- Order 37 CPC
- Leave to defend
- Triable issue
- Summary suit
- Agreement for sale
- Balance consideration
- Unauthorised construction
- Cash payment
- Vague defence
Case Details
2024 LawText (BOM) (04) 77
SECOND APPEAL (STAMP) NO.3119 OF 2024 WITH INTERIM APPLICATION NO.1444 OF 2024
Mr. S.S. Kulkarni with Mr. Rahul Kashid i/b. Mr. R.S. Gangawane for the Appellant; Mr. Kuldeep U. Nikam for the Respondents
Technocrat Construction through its proprietor Pradip Manohar Kondnani
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Nature of Litigation
Second appeal against decree in summary suit for recovery of money
Remedy Sought
Appellant sought to set aside the decree passed in the summary suit and the dismissal of his appeal
Filing Reason
Appellant challenged the decree dated 16 August 2023 passed by the District Judge, Pune, dismissing Regular Civil Appeal No.164 of 2021 and confirming the Judgment and Decree dated 15 January 2021 passed by the Civil Judge, Senior Division in Special Summary Suit No.235 of 2019
Previous Decisions
Trial Court decreed Special Summary Suit No.235 of 2019 on 15 January 2021 directing defendant to pay Rs. 30,00,000 with interest at 6% per annum from date of filing; District Judge dismissed Regular Civil Appeal No.164 of 2021 on 16 August 2023
Issues
Whether the defendant in a summary suit under Order 37 CPC is entitled to leave to defend on the basis of vague and unsubstantiated allegations of payment in cash?
Whether the defence of unauthorised construction raises a triable issue in a suit for recovery of balance consideration under an agreement for sale?
Submissions/Arguments
Appellant argued that the building was unauthorised and that he had paid the entire consideration in cash, and therefore the suit should not have been decreed.
Respondent argued that the appellant admitted the agreement and part payment, but failed to provide any particulars of cash payments, and that the defence was vague and did not raise a triable issue.
Ratio Decidendi
In a summary suit under Order 37 CPC, leave to defend cannot be granted on the basis of vague and unsubstantiated allegations. The defendant must disclose a triable issue or a substantial defence. Mere assertions of cash payments without particulars do not constitute a triable issue. The defence of unauthorised construction does not absolve the defendant from liability to pay the agreed consideration under the agreement for sale.
Judgment Excerpts
Appellant has filed this appeal challenging the Decree dated 16 August 2023 passed by the District Judge, Pune, dismissing Regular Civil Appeal No.164 of 2021 and confirming the Judgment and Decree dated 15 January 2021 passed by the Civil Judge, Senior Division in Special Summary Suit No.235 of 2019.
Defendant appeared in the Suit and filed application at Exhibit-18A seeking leave to defend. In his application, the Defendant contended that the building constructed by Plaintiff is unauthorised and that the Municipal Corporation has issued notices for its demolition. Defendant contended that the entire amount of consideration is already paid by him to Plaintiff from time to time in cash as well as by cheque.
Procedural History
The plaintiff filed Special Summary Suit No.235 of 2019 in the Court of Civil Judge, Senior Division, Pune for recovery of Rs. 37,36,000. The defendant filed an application for leave to defend. The Trial Court decreed the suit on 15 January 2021 for Rs. 30,00,000 with interest at 6% per annum from the date of filing. The defendant appealed to the District Judge, Pune, who dismissed Regular Civil Appeal No.164 of 2021 on 16 August 2023. The defendant then filed the present second appeal before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 37 Rule 3
