$~A-3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06.10.2016
+ CM(M) 916/2016
D K KAUNTAE ..... Petitioner
Through Mr. Navjot Kumar and Mr. Karan
Khanna, Advocates.
versus
SURESH KUMAR (HAVILDAR) ..... Respondent
Through CORAM:
HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH (ORAL) CM No. 33590/2016 (exemption) Exemption is allowed subject to all just exceptions. CM(M) 916/2016 and CM No. 33589/2016 (stay)
1. By the present petition, the petitioner seeks to impugn the order dated 21.07.2016 passed by the trial court whereby the trial court treating the suit filed by the petitioner as an ordinary suit and not a suit under Order 37 CPC, issued fresh summons to the defendant/respondent despite the fact that the defendant did not enter appearance within 10 days on being served with summons.
2. The petitioner/plaintiff has filed the suit under Order 37 CPC for recovery of Rs. 2.50 lacs. It is stated that the petitioner is an Advocate by profession and was engaged by the respondent and a fee of Rs.3 lacs was CM(M) 916/2016 Page 1 agreed upon. The respondent is said to have signed the vakalatnama and handed over a sum of Rs.50,000/- in cash on 23.10.2015. He is also said to have handed over a cheque drawn on ICICI Bank for a sum of Rs.2.50 lacs as remaining professional fee. The plaintiff/petitioner states that when he presented the cheque on 29.10.2015, the same was returned with the remarks "Non CTS". The cheque was presented again and was dishonoured with the remarks "payment stopped by drawer". A legal notice is said to have been sent on 21.11.2015 under Section 138 of the Negotiable Instruments Act. Based on this, the present suit was filed.
3. The trial court by the order dated 21.07.2016 concluded that the respondent has been served by speed post and registered AD on 29.04.2016 and 02.05.2016 respectively and has not entered appearance within the prescribed period of 10 days. It notes that in such an event, a decree should follow in favour of the petitioner. It further notes that a cheque is bill of exchange and a suit based on a bill of exchange would be maintainable under Order 37 CPC. It also notes that there is a presumption under Section 118 and Section 139 of the Negotiable Instruments Act that unless contrary is proved, a holder of a cheque received a cheque for discharge in whole or in part of any debt or any liability and the same was made or drawn for a consideration. This presumption of course is rebuttable, it further states.
4. The court thereafter noted two other facts. Firstly, that the bill issued by the petitioner for fee on 23.10.2015 is for Rs. 3 lacs whereas the cheque is for Rs.2.50 lacs. It secondly noted that the bill is a computer generated document and is not supported by any receipt or acknowledgment of the respondent and is filed without a certificate under Section 65 B of the Indian Evidence Act. Noting these stated infirmities in the case of the petitioner, CM(M) 916/2016 Page 2 the trial court concluded that the suit cannot be decreed under Order 37 CPC and the petitioner would have to lead evidence. Ignoring the fact that service has already been affected on the respondent, the trial court issued fresh summons to the respondent.
5. Learned counsel for the petitioner has relied upon the judgment of this court in the case of M/s Jindal Aromatics vs. M/s South Coast Spices Exports Pvt. Ltd., AIR 2004 Delhi 8 to contend that in the present facts, a decree would necessarily have to follow and the impugned order is erroneous.
6. Order 37 Rule 2 CPC reads as follows:-
"2. Institution of summary Suits.- (1) A suit, to which this Order applies, may, it the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,--
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and
(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:--
(Under Order XXXVII of the Code of Civil Procedure, 1908)". (2) The summons of the suit shall be in form No. 4 in Appendix B or in such other Form as may , from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the CM(M) 916/2016 Page 3 decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."
7. Hence, a defendant when served with a summon shall not defend the suit unless he enters appearance and in the absence of entering appearance, the allegations in the plaint are deemed to be admitted and the plaintiff shall be entitled to a decree for a sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as determined by the High Court as per rules.
8. Despite this provision, the trial court has on the grounds totally unconnected with the Order 37 CPC sought to treat the suit as not under Order 37 CPC. The grounds for the alleged discrepancies are that the cheque is for amount of Rs. 2.50 lacs whereas the bill is of Rs. 3 lacs. The second discrepancy noted is that the bill is a print out and certificate under Section 65 B of the Indian Evidence Act is not available. The alleged infirmities are no infirmities as per Order 37 Rule 2 CPC. The suit is based on a cheque issued for Rs. 2.50 lacs. The bill of professional fees is merely a supporting document to further show that the cheque is for consideration. This discrepancy does not take the suit outside the ambit of Order 37 CPC. The suit remains a suit under Order 37 CPC.
9. This court in the case of M/s Jindal Aromatics vs. M/s South Coast Spices Exports Pvt. Ltd.(supra) held as follows:-
"7. It may be noted that the suit is based on dishonoured cheques, amounting to Rs. 18,69,000/- and the interest thereon. In the instant case, defendant has failed to appear or take any steps for entering appearance, as required and moving the Court for CM(M) 916/2016 Page 4 condensation of delay in entering appearance, even after the dismissal of the application under Section 34 of the Arbitration Act, 1940. In these circumstances, there is no alternative, but to proceed in accordance with the provision of Order xxxvII CPC Rule 2 Sub-rule (3), which provides, "the defendant shall not defend the suit referred to in sub-rule (1) unless he enters appearance and in default of his entering appearance, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons". The suit being based on dishonoured cheques, plaintiff has claimed interest at the rate of 24% per annum being a commercial transaction."
10. In the light of the above, the impugned order suffers from material illegality. It is wholly contrary to Order 37 Rule 2 CPC. The impugned order is set aside and a decree is passed in favour of the petitioner and against the respondent for a sum of Rs. 2,50,000/-. The petitioner shall also be entitled interest @ 9 % per annum from the date of filing of the suit till the date of recovery and costs.
11. In view of the above, the petition stands disposed of.
JAYANT NATH, J
OCTOBER 06, 2016
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CM(M) 916/2016 Page 5