Case Note & Summary
The plaintiff, Jolly Constructions, a registered partnership firm acting as a sub-contractor, filed a summary suit under Order 37 of the Code of Civil Procedure, 1908 (CPC) against the defendant, Stephan Bernard Construction Co., a proprietary firm. The plaintiff claimed recovery of Rs. 5,00,000/- being the balance amount due for construction work completed for the defendant's project 'Mastermind II & III' at Goregaon (East), Mumbai. The plaintiff alleged that the defendant had invited offers for construction and the plaintiff submitted a quotation, which was accepted. The plaintiff completed the work, but the defendant failed to pay the full amount, leaving a balance of Rs. 5,00,000/-. The defendant filed an appearance and sought leave to defend, denying liability and alleging that the work was defective and incomplete, causing losses. The defendant also claimed that the plaintiff had abandoned the work. The court heard submissions and perused affidavits. The court noted that the defendant's allegations were vague and unsupported by any contemporaneous documentary evidence such as photographs, correspondence, or expert reports. The court found that the defendant's defence was not bona fide and did not raise any triable issue. Consequently, the court decreed the suit in favor of the plaintiff for Rs. 5,00,000/- with interest at 9% per annum from the date of suit till realization, and costs.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 2 CPC - The court examined whether the defendant's denial of liability and claim of defective work constituted a bona fide defence or triable issue. Held that the defendant failed to produce any contemporaneous documentary evidence to support its allegations, and the defence was not bona fide. (Paras 1-6) B) Contract Law - Unliquidated Damages - Set-off - The defendant's claim for damages due to alleged defective work was not supported by any evidence such as photographs, correspondence, or expert reports. Held that such a claim cannot be entertained as a defence in a summary suit without proper proof. (Paras 4-6) C) Interest - Pendente Lite and Future Interest - Section 34 CPC - The court awarded interest at 9% per annum from the date of suit till realization, noting that the contract did not specify any rate of interest. (Para 6)
Issue of Consideration
Whether the defendant has a bona fide defence or raises a triable issue entitling them to leave to defend in a summary suit for recovery of unpaid contract amount.
Final Decision
The court allowed the Summons for Judgment and decreed the suit in favor of the plaintiff for Rs. 5,00,000/- with interest at 9% per annum from the date of suit till realization, and costs.
Law Points
- Summary suit under Order 37 CPC
- Leave to defend
- Bona fide defence
- Triable issue
- Unliquidated damages
- Interest pendente lite
