ORDER
DR. M.K. Sharma, J.
1.
The present revision petition has been preferred by the petitioners/defendants being aggrieved by the order dated 12.3.1997 passed by the Additional District Judge, Delhi, in suit No. 96/1996 dismissing the application filed by the petitioner seeking for leave to defend and passing a decree for a sum of Rs. 4 lac with costs and pendentelite and future interest in favour of the respondent.
2. The respondent filed the aforesaid suit on 4.7.1996 under the provisions of Order 37 of the Code of Civil Procedure seeking for a decree for a sum of Rs. 4 lac alongwith interest on the basis of cheques No. 953930 and 953931 for Rs. 2 lac each issued by the petitioner in favour of the respondent. The case of the plaintiff as set up in the plaint was that the plaintiff who is an Ex. Wing Commander of Indian Air Force entered into an agreement to sell dated 18.9.1996 and also executed a general power of attorney, deed of will in 26.1.1996 in respect of the premises No. A-1/147, Janak Puri, New Delhi in favour of defendant No. 1 for a total sale consideration of Rs. 11 lac. He received a sum of Rs. 7 lac comprising of Rs. 25,000/- received in cash against receipt and Rs. 6,75,000/- in the shape of demand drafts. For the balance amount the defendant issued two cheques dated 4.3.1996 bearing No. 953930 and 953931 for a sum of Rs. 2 lac each. The aforesaid cheques when presented to the bank after 10 days as requested by the defendants, were returned dishonoured with the remarks “insufficient funds”. It is alleged that the defendants assured the plaintiff that if the same are presented once again the same would be encashed and accordingly, the said cheques were presented to the Bank but the same were again dishonoured and therefore, the aforesaid suit was filed.
3. The defendants/petitioners sought leave to defend the aforesaid suit by moving separate but similar leave applications claiming that a sum of Rs. 4 lac in cash was paid to the plaintiff on 21.1.1996 in lieu of the two cheques which are the subject matter of the suit against receipt. The aforesaid leave applications filed by the petitioners were contested by the respondent, on which the trial court heard the counsel appearing for the parties. By the impugned order the said applications were dismissed holding that the defendants have failed to raise any triable issue for grant of leave by the court to defend the suit and passed a decree as stated above.
4. Learned counsel appearing for the petitioner submitted that the documents placed on record namely – the agreement to sell and the receipt, if would have been considered in its true perspective, the same would have made it apparent that the defendants have been able to raise triable issues in suit and therefore, the impugned order is illegal and void and consequently the decree passed is also liable to be set aside.
5. It is an admitted position that the petitioners issued one cheque each respectively signed by each one of them from their joint account No. 69326. The said cheques are with the numbers 953930 and 953931 each for value of Rs. 2 lac. It is also an admitted position that the aforesaid two cheques when presented to the back were dishonoured due to insufficient funds which is corroborated by documentary evidence on record in the nature of memorandum of Punjab National Bank, Rajouri Garden, New Delhi issued on 23.3.1996. The said cheques were again presented in the bank for encasement and the same were again dishonoured with similar remarks by another set of memoranda dated 16.4.1996 and delivery of the same to the respondent as a part of the entire consideration for the sale transaction of Rs. 11 lac thus cannot be disputed. It is an admitted fact, as is apparent from the application seeking for leave that the said transaction was settled for a sale price of Rs. 11 lac. So far the payment of Rs. 7 lac is concerned there is no dispute amongst the parties. However, in respect of the balance Rs. 4 lac of the sale consideration, two cheques for Rs. 2 lac each totaling Rs. 4 lac were admittedly handed over to the respondent. The trial court has considered the contents of the receipt and the agreement to sell and on consideration thereof has come to the finding that the defense of the defendants as raised in the application for leave are frivolous and bogus. A copy of the receipt is also placed on record and that indeed indicates that the balance amount of Rs. 4 lac was sought to be paid by cheques, which when presented to the bank were dishonoured, which is corroborated by the documentary evidence issued by the bank. For recovery of the aforesaid Rs. 4 lac the aforesaid suit is instituted by the respondent.
6. On consideration of the entire evidence on record I do not find any reason to differ from the findings of the trial court, who on appreciation of the documentary evidence placed on record, came to the conclusion and findings which are based on cogent reasons that the defense put up by the defendants is sham and bogus and no triable issue is raised by the defendants in the suit. Since the defense sought to be raised by the defendants was found to be sham and in the nature of moonshine, the trial court declined to grant any relief to the petitioners. The documents which are on record clearly establish and prove that the defendants did not pay the balance consideration of Rs. 4 lac to the petitioner. The cheques issued by the petitioners in favour of the defendants towards payment of the aforesaid sum were dishonoured by the bank and therefore, it is established that no payment of the aforesaid amount of Rs. 4 lac was made by the petitioner to the respondents. The trial court was, therefore, justified in holding that the defense is sham and moonshine and that no triable issue is raised in the applications seeking for leave to defend by the petitioners.
7. In my considered opinion, the applications seeking for leave were rightly rejected by the trial court. Consequent decree passed in the suit is also upheld. There is no merit in this petition and the same is dismissed.