Case Note & Summary
The plaintiff, Hitesh Lakhamshi Shah, a sole proprietor of M/s. Hitesh Paper Mart, filed a summary suit against the defendants, Pradip Chinubhai Shah and Nisha Pradip Shah, for recovery of Rs.1,92,113/- with interest. The suit was based on an invoice (No. 2113 dated 23rd September 2008), a delivery challan signed by the defendants, and a dishonoured cheque of Rs.10,000/- issued by the defendants towards part payment. The plaintiff alleged that pursuant to an order placed by the defendants, goods worth Rs.1,60,000/- were sold, supplied, and delivered. The cheque was returned with the remark 'Insufficient Fund'. After a legal notice, the defendants denied the claim, contending that five cheques were issued in 2003 for an earlier transaction, out of which two were encashed and three were not returned. The plaintiff did not dispute that those cheques were encashed in 2003. The defendants filed an affidavit in reply. The plaintiff filed a Summons for Judgment under Order 37 of the Code of Civil Procedure, 1908, seeking judgment against the defendants. The court considered whether the defendants had raised any triable issues. The court noted that the defendants did not deny the delivery of goods under the invoice and delivery challan. Their defence regarding the earlier transaction and non-return of cheques was unrelated to the present claim. The court held that the defence was moonshine and not bona fide, and therefore no leave to defend was granted. The court entered judgment in favor of the plaintiff for the sum claimed with interest.
Headnote
A) Civil Procedure - Summary Suit - Order 37 CPC - Leave to Defend - The court considered whether the defendants had raised any triable issues to warrant unconditional leave to defend. The plaintiff sought judgment based on invoice, delivery challan, and dishonoured cheque. The defendants alleged an earlier transaction and non-return of cheques but did not deny the specific delivery. Held that the defence was moonshine and not bona fide, and thus no leave to defend was granted. (Paras 2-4)
Issue of Consideration
Whether the defendants have raised any triable issues entitling them to unconditional leave to defend in a summary suit based on invoice, delivery challan, and dishonoured cheque.
Final Decision
The court allowed the Summons for Judgment and entered judgment in favor of the plaintiff against the defendants for the sum claimed with interest.
Law Points
- Summary suit
- Order 37 CPC
- Leave to defend
- Triable issues
- Dishonoured cheque
- Delivery challan
- Invoice
