M D INTERNATIONAL INN Vs. K L SETHI

JUDGEMENT

(1.) In this revision petition, the order passed by the trial judge is under challenge, whereby leave to defend the suit was declined The suit was under the provisions of Order 37 CPC, based primarily on a cheque dated 8th September, 1989 for Rs. 27.600.00 , and also on a written contract Set ween the parties, whereby the plaintiff in the suit had undertaken construction work for the defendants, and the mode of payment was settled by means of the said agreement. .

(2.) According to the plaintiff's case, as per terms of the agreement 20% of the total contract amount was payable to the plaintiff after completion of pit and shaft upto the terrace level. The allegation was that he had completed his work, and then called upon the defendants by means of letter dated 29th August, 1989 to release payment of 20% clearly staling that the work had been completed upto the stage of terrace as per terms of the agreement. It was thereafter that the cheque dated 8th September, 1989 was issued, but the same on being presented to the bank was received back with the remark "stop payment" and "refer to drawer". A decree was, therefore, sought by invoking the provisions of section 37 of the Code Civil Procedure on the basis of the cheque as also the writtencon tract.

(3.) Thepetitioners while seeking leave to defend did not dispute the existence of the contract between the parties nor the terms thereof. Receipt of letter dated 29th August, 1989 was also not denied. Issuance of the cheque was also admitted. The only plea taken was that this amount was paid in advance towards completion of the work upto the stage of overhead, and above the terrace level, and that after the cheque had been taken by the plaintiff, (respondent herein), on the representation that the said work had been completed by him, the defendants inspected the site and discovered that the work had not been completed as per terms of the agreement, and then he immediately took steps to stop payment. The trial court examined this defence as set out in the application, and found it to be totally sham and illusory, and thus declined to grant leave to defend, as prayed for.