Bombay High Court

Shubhangi W/O Satyajit Wachasundar And ... vs Prakash S/O Govindlal Agrawal on 21 December, 2023

Author: Avinash G. Gharote

Bench: Avinash G. Gharote

2023:BHC-NAG:17589

                                                1                 1.WP.3352-2023 JUDGMENT.odt




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR

                                   WRIT PETITION NO. 3352 OF 2023


                     1. Mrs.   Shubhangi       w/o     Satyajit
                        Wachasundar
                        Aged 55 Yrs., Occ. Business,


                     2. Mr. Satyajit Sudhakar Wachasundar
                        Aged 60 Yrs., Occ. Business,
                        Both petitioners are resident of
                        Plot No.13, Sneh Nagar, Yogakshem
                        Layout, Nagpur 440015.                       PETITIONERS


                          Versus

                        Prakash s/o Govindlal Agrawal
                        Aged about 61 Years, Occ. Business,
                        Resident of A-6, Ganga Sagar, 83,
                        Canal Road, Ramdaspeth,
                        Nagpur-440010                                RESPONDENT

                 -----------------------------------------------
                 Mr. Yash J. Maheshwari, Advocate for the Petitioners.
                 Mr. Sahil S. Dewani, Advocate for the Respondent
                 -----------------------------------------------



                                      CORAM : AVINASH G. GHAROTE, J.

                                      DATED    : 21st DECEMBER, 2023.


                 ORAL JUDGMENT :-

                                  2                1.WP.3352-2023 JUDGMENT.odt




            Heard.



2.          Rule. Rule made returnable forthwith.

3. Heard finally with the consent of the learned

counsels for the respective parties.

4. The order dated 05.07.2023 records the position as

under :

"1] The question is whether the provisions of Order 37 Rule 2(b) of the CPC is mandatory or directory and in case of absence of an averment that no relief which does not fall within the ambit of this Rule has been claimed in the plaint, whether the suit has to be tried as a Regular Civil Suit instead of a Summary Suit. The learned Division Bench of the Delhi High Court in Khera Handloom Supply vrs O.B.Exports & ors, 1989 SCC OnLine Del 155 in para 11 has held that Order 37 Rule 2 is mandatory, which has to be complied with, however, has gone ahead and in para 15 held it to be procedural in nature and substantial compliance therewith to be enough, based upon which a learned Single Judge of this court in Hrishikeksh vrs. Vidushi 2023 SCC OnLine Bom 854 has held that if the plaint averments indicate substantial compliance that would be enough."

5. The respondent on 12.01.2022, filed Summary Suit

No.23/2022, under Order 37 of the Code of Civil Procedure (for

short "CPC" hereinafter), for recovery of an amount of 3 1.WP.3352-2023 JUDGMENT.odt

Rs.17,76,154/-, in which the petitioner/defendant on

01.03.2023, filed an application for treating the suit not as a

summary suit but as a regular suit based on the judgment of the

learned Division Bench of the Delhi High Court in Khera

Handloom Supply Vs. O.B. Exports & Ors., 1989 SCC Online Del

155, and the contention that the averment as per the

requirement of Order 37 Rule 2 (b) of CPC was not contained in

the plaint. This application came to be rejected by the learned

Trial Court, being aggrieved by which the petitioner/defendant

has filed the present petition.

6. Mr. Maheshwari, learned counsel appearing for the

petitioners, submits that the averment "no relief not falling

within the ambit of this Rule has been claimed" as occurring in

Rule 2(1)(b) of Order 37 of CPC, has not been made in the

plaint, on account of which, the said provision being mandatory

in nature, the suit filed by the respondent under Order 37 of

CPC was not maintainable and was required to be continued not

as a Summary Suit but as a Regular Civil Suit in view of what

has been held in Khera Handloom Supply (supra) ; Jatin

Khanna alias Rajesh Khanna Vs. Prema G. Ullal, 1979 SCC 4 1.WP.3352-2023 JUDGMENT.odt

OnLine Kar 70; Mafatlal Finance Limited Vs. Express Industrial

Services Private Limited, Mumbai, 1999 SCC OnLine Bom 327

(which according to Mr. Dewani, learned counsel for respondent

has been overruled in Bhushan Steel Ltd., New Delhi Vs. Varsha

A. Maheshwari, 2011 (2) Mh.L.J. 462 - it is, however, the

contention of the learned counsel for the petitioner that though

the contention was raised, it was not dealt with and decided);

Raghunath Rai Bareja and Another Vs. Punjab National Bank

and Others, (2007) 2 SCC 230. He does not dispute that the

other requirements of Order 37 Rule 2(1) of CPC are complied

by the plaint. SICOM Ltd. Vs. Prashant S. Tanna and others,

2004 (2) CTC 641 is also relied upon. It is therefore submitted,

that the requirement of the averment being mandatory since the

same is absent in the plaint, the above course of action of

proceeding in the suit in regular manner has to be followed. He

also contends that the averment in Para 21 of the plaint

(Page 32) cannot be said to be compliance of the aforesaid

requirement as according to him the language thereof is not

sufficient.

7. Mr. Dewani, learned counsel for respondent 5 1.WP.3352-2023 JUDGMENT.odt

/plaintiff, supports the impugned order and contends that the

averment in the last line of Para 21 (Page 32), in sum and

substance satisfies the requirement of Order 37 Rule 2(1)(b) of

CPC as indicated above. He further relies upon the averment

made in Paras 22, 23 and 24 of the plaint (Pages 32 and 33) to

contend that the requirement stands satisfied. It is also

contended that it is substance and not the form which is

material and if the aforesaid averments in the plaint are read

together, they will demonstrate that the requirement of Order

37 Rule 2(1) of CPC stands satisfied. In support of his

submission, he relies upon Hrishikesh and another Vs. Vidushi,

Through her Power of Attorney Holder Shri Vedant, 2023 SCC

OnLine Bom 864 and Bachahan Devi and another Vs. Nagar

Nigam, Gorakhpur and another, (2008) 12 SCC 372 delineating

on when the word 'may' is to be held to be mandatory. Similar is

the proposition laid down in Ashwin Ashokrao Karokar Vs.

Laxmikant Govind Joshi, 2022 SCC OnLine Bom 8577. He

therefore submits that when the substance of the requirement

stands satisfied, non adherence to the form cannot be said to be

a position which would take the plaint beyond the scope and

ambit of Order 37 of CPC.

6 1.WP.3352-2023 JUDGMENT.odt

8. Order 37 Rule 1 and 2 of CPC read as under:

"ORDER XXXVII-SUMMARY PROCEDURE [1. Courts and classes of suits to which the Order is to apply-- (1) This Order shall apply to the following Courts, namely:--

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) other Courts;

Provided that in respect of the Courts referred to in clause

(b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper. (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:--

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising,--

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.] [(iv) suit for recovery of receivables instituted by any assignee of a receivable.]

[2. Institution of summary suits.--(1) A suit, to which this Order applies, may, if 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;

7 1.WP.3352-2023 JUDGMENT.odt

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and

"(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 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.]"

9. The requirement of Rule 2 of Order 37 of CPC, is as

indicated in clauses (a) to (c) of Sub Rule 1 thereof. As

indicated above Mr. Maheshwari, learned counsel for the

petitioners, does not dispute that the other requirements of

Order 37 Rule 2 (1) (a) and (c) of CPC stands complied with,

the only position which has to be considered is the plea about

non compliance with the requirement of clause (b) of Order 37

Rule 2 of CPC.

10. In Khera Handloom Supply (supra), the learned

8 1.WP.3352-2023 JUDGMENT.odt

Division Bench of the Delhi High Court in para 10 thereof has

held the requirement of Order 37 Rule 2 (a) of CPC is

mandatory. Going a step ahead in the same judgment, it has

also been held that Order 37 Rule 2 of CPC is mandatory and

has to be complied with. At the same time, it is also held that

the even though the provisions of Order 37 Rule 2 of CPC are

mandatory, the same have to be interpreted in the way so that

the legislative intent is given effect to, considering which, it has

been further held (para 15) that the provisions of Order 37 Rule

2 of CPC being procedural in nature the requirement of the said

provisions would be satisfied if there has been substantial

compliance with the same. For the sake of ready reference, para

15 as quoted as under:

"15. The provisions of Order, 37 rule 2 being procedural in nature, in our opinion, the requirement of the said provision would be satisfied if there has been substantial compliance with the same. In other words, the plaint must show that there has been compliance with the provisions of Order, 37 rule 2(1)(a), (b) and (c). For example, though Sub-rule (b) of rule 2(1) of Order, 37 is couched in negative terms, in our opinion, there would be substantial compliance with this provision if an averment to this effect is made in positive term by the plaintiff in the plaint. In the instant case, in 9 1.WP.3352-2023 JUDGMENT.odt

paragraph 3 of the plaint it has been stated by the plaintiff that "the suit is based on the cheque, which has been issued by the defendants in favour of plaintiff which on presentation, was returned with the remark "REFER To DRAWER". The relief prayed in this suit falls within the ambit of Order, 37 Rule CPC," This, in our opinion, fulfillls the requirement of Order, 37 rule 2(l)(b) even though it is stated in a manner differently than what has been indicated in the said rule."

11. Jatin Khanna alias Rajesh Khanna (supra) holds that

in respect of matters that are specifically dealt by Order 37 of

CPC, the Court is required to apply only the special procedure

provided in the various provisions contained in the said Order

and cannot apply the provisions that are applied. When a suit is

instituted in the ordinary procedure when one chooses to avail

the summary or special procedure provided by Order 37 of CPC,

the parties to the suit, viz., the plaintiff and the defendant are

required to comply with that special procedure in respect of the

matters specially dealt in that order and they cannot avail of the

ordinary procedure in respect of those matters that are

specifically provided by the summary or special procedure of

Order 37 of CPC. What is necessary to note is that Jatin Khanna

alias Rajesh Khanna (supra) was a case in which what fell for 10 1.WP.3352-2023 JUDGMENT.odt

consideration was the contention that the summons of the suit

had not been served on the defendant in Form No. 4 of

Appendix B and (ii) that the copies of the plaint and the

enclosures had not been served on the defendants and they

were received by their counsel on 8th November 1978 and

therefore the suit cannot be proceeded with and tried under

Order 37 of CPC. Though it has been held that the provisions of

Order 37 of CPC were mandatory in as much as they prescribed

a special procedure for summary suits, different that the one for

a regular suit, the position has been stated in a generalised way.

The specific plea regarding Order 37 Rule 2(b) of CPC did not

fell for consideration there.

12. Mafatlal Finance Limited (supra) relies upon

Randerian & Sing Pvt. Ltd. Vs. Indian Overseas Bank, in Appeal

No. 1060/1986 in Summons for Judgment No. 307/1986 in

Summary Suit No. 3212/1989 dated 24.02.1987 and the

Judgment of another Division Bench of the Court in Hydraulic

and General Engineering Ltd. Vs. UCO Bank, (1998) I LJ 793,

which have been overruled.

11 1.WP.3352-2023 JUDGMENT.odt

13. Raghunath Rai Bareja and Another (supra) has been

relied upon by Mr. Maheshwari, learned counsel for the

petitioners, to contend that the provisions of Order 37 of CPC

have to be interpreted literally as there is no ambiguity in the

provisions. In Raghunath Rai Bareja and Another (supra), it has

been held that the literal rule of interpretation really means that

there should be no interpretation, in other words, one should

read the statute as it is, without distorting or twisting its

language.

14. The absence of a specific averment regarding what

has been stated in Order 37 Rule 2(b) of CPC, has to be

considered in the context of the position that the plaint has to

be read as a whole, in order to ascertain the compliance with

the requirement of law. This is so for the reason that it is the

substance and not the form which is material. A litigant cannot

be non-suited or denied the benefit of a provision, for not

adhering to a specific language or phrase, if the averments in

the plaint are sufficient enough to indicate a substantial

compliance. In this context, what has been held in Syed

Dastagir Vs. T. R. Gopalakrishna Setty (1999) 6 SCC 337 , in the 12 1.WP.3352-2023 JUDGMENT.odt

contextual background of the requirement of an avement as to

readiness and willingness, in a suit for specific performance, as

contained in Section 16 (c) of the Specific Relief Act, would

aptly cover the position, which is as under :

"9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16 (c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of a statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded."

13 1.WP.3352-2023 JUDGMENT.odt

Syed Dastagir (supra) has been considered with

approval in C. Haridasan Vs. Anappath Parakkattu Vasudeva

Kurup and others 2023 SCC OnLine 36 (para 70).

15. Thus it is the substance and not the Form, which is

material, for the purpose of deciding the satisfaction of the

requirement of a provision of the law.

16. In this context a perusal of the plaint in Summary

Suit No. 23/2022 (page 18), would indicate that the title itself

indicates that it is a summary suit under Order 37 of CPC. The

averments regarding the maintainability of the suit in summary

proceedings are also contained in paras 22, 23 and 24 of the

plaint, which read as under:

"22. It is submitted that as per Order 37 Rule 1 (2) of the Code of Civil Procedure, Summary Suit can be filed on the basis of a) Bills of Exchange, Hundis and Promisory notes: b) Suits in which plaintiff seeks only to recover a debt or a liquidated demand in money payable by the defendants with or without interest arising:-

           i)       On a written contract or

           ii)      On an enactment where the sum sought to be
                    recovered is a fixed sum of money or in the
           nature of a debt other than penalty or

           iii)     On a guarantee where the claim against the
                                    14                   1.WP.3352-2023 JUDGMENT.odt

principle is in respect of debt or liquidated demand only.

23. It is submitted that the defendants have acknowledged their liabilities. The accounts between the plaintiff and the defendants are duly settled and confirmed in writing. The defendants have given confirmation on the ledger in which the mutual accounts have been entered and the accounts have been settled between the plaintiff and defendants. Needless to state such a settling of accounts has given rise to a written contract with a promise to pay the amount. The defendants had consensus of mind when the said acknowledgment was given by them. Thus, there was a promise, consideration and there was acceptance. The said acknowledgment clearly states of a pre-existing debt, an absolute unqualified liability with an obligation to repay the same in future. Thus, a summary suit filed by the plaintiff based on settled account is maintainable and covered under Clause 2 (b) (i) of rule 1 of Order 37 of Civil Procedure Code. It is upon their assurances and understanding only it was expected that the defendants would ensure that the payment would be duly made. However, the circumstance clearly speaks that the defendants have an intention of cheating the plaintiff right from the beginning.

24. It is submitted that Order XXXVII C.P.C has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. Thus, there is no legal impediment in entertaining the present suit."

17. In my considered opinion, the very position, that the

plaint in its heading states that it is one under Order 37 of CPC 15 1.WP.3352-2023 JUDGMENT.odt

and the averments in paras 22 to 24 specifically state that it is

one, which is governed by the provisions of Order 37 of CPC on

the ground that cheques had been issued and accounts have

been settled and the suit is based upon that premise, would

indicate substantial compliance with the requirement of Order

37 Rule 2 (1) (b) of CPC. Even considering what has been held

in Khera Handloom Supply (supra) that there has to be

substantial compliance, in light of the above averments, it can

be said that the requirement of Order 37 Rule 2 (1)(b) of CPC

are concerned the same would be indicated to have been

satisfied. It would also be material to note that it is in fact

Sub-Rule (1) of Rule 1 of Order 37 of CPC, which are the

substantive provisions, which creates the jurisdiction, right, and

Sub-Rule (2) of Rule 1 of Order 37 of CPC which lay down the

parameters for exercise of such jurisdiction, enumerating that

the classes of suits as enumerated in clauses (a) and (b) of

Sub-Rule 2 of Rule (1) of Order 37 of CPC would be those in

respect of which summary jurisdiction could be exercised. Rule

2 of Order 37 of CPC on the other hand requires that in addition

to what has been provided in Order 37 Rule (1) Sub-Rule (2) of

CPC, what should be pleaded in the plaint and is thus a rule of 16 1.WP.3352-2023 JUDGMENT.odt

pleading, which as held in Khera Handloom Supply (supra)

would stand satisfied if substantial compliance with the same is

pointed out, which in the instant matter as pointed out above is

there. This position has been considered in Hrishikesh (supra)

[para 31] after considering Khera Handloom Supply (supra),

which I concur.

18. Mr. Maheshwari, learned counsel for the petitioners,

then contends that since Order 37 Rule 2 (b) of CPC mandates,

that no relief, which does not fall within the ambit of this rule,

has been claimed in the plaint, in view of which, it is contended,

that only the claim based upon the cheque amounts, at the most

could be said to be one which could be contemplated under

Order 37 Rule 1 of CPC. However, since the particulars of claim

in para 18 (page 31) of the plaint seeks a claim of Rs. 10,000/-

towards legal notice issued to the defendant in respect of

recovery of the amount, seeking such claim, according to him

would be the violation of clause (b) of Order 37 Rule 2 Sub

Rule 1 of CPC. That such a relief has been claimed cannot be

disputed by Mr. Dewani, learned counsel for the respondent, as

it is contained in the particulars of claim in the plaint itself. The 17 1.WP.3352-2023 JUDGMENT.odt

question is whether a claim for notice charges could be said to

be one, which takes the suit out of the ambit and parameters of

being a summary suit.

19. In my considered opinion, the position would stand

covered by the opinion rendered by the learned Full Bench of

this Court in SICOM Ltd. (supra), where the following opinion

has been rendered :

" 28. In the circumstances, we summarise the answer to the reference as follows:

(1) The judgments in M/s Randerian & Singh v. Indian Overseas Bank and Hydraulic and General Engineering v.

UCO Bank, 1998 (1) L.J. 793 are overruled. The suit would be maintainable as a summary suit if it falls within one of the classes of suits enumerated in Order XXXVII, Rule 1(2) even if the claim made therein is not properly quantified or is in excess of what the plaintiff is entitled to.

(2) In a summary suit filed under Order XXXVII of the Civil Procedure Code, the plaintiff is entitled at any time to abandon or give up a part of the claim unilaterally. This, the plaintiff may do by making a statement to be recorded by the Court and without the necessity of the plaintiff making a formal application for the same by withdrawing the summons for judgment, amending the plaint and thereafter taking out a fresh summons for judgment or otherwise.

(3) At the hearing of the summons for judgment, it will be open to the Court to pass a decree for a part of the claim and grant unconditional leave to defend the suit in respect of rest of the claim.

18 1.WP.3352-2023 JUDGMENT.odt

(4) At the hearing of the summons for judgment, it is open to the Court to grant conditional leave to defend in respect of a part of the claim and unconditional leave to defend for the remaining part of the claim. In such an order it would follow that in the event of the defendant failing to comply with the condition, he would suffer the consequences mentioned in Order XXXVII qua only that part of the claim for which conditional leave to defend has been granted and not in respect of that part of the claim for which unconditional leave has been granted.

(5) There may be further options available to the Court while passing an order on the summons for judgment. Our judgment does not exhaustively set out the options. Obviously, judicial discretion has to be exercised in consonance with the settled legal principles governing grant of leave to defend in summary suits".

20. Thus merely because a claim for notice charges has

been made, considering what the Full Bench has opined in

SICOM Ltd. (supra) that by itself would not take the suit away

from the summary procedure as prescribed in Order 37 of CPC,

as any one of the positions/options as set out in para 28 (2) to

(4) therein could be brought into effect.

21. In light of the above discussion, I, therefore see no

reason to interfere in the impugned order. The petition is

dismissed. In the circumstances there shall be no order as to

costs.

19 1.WP.3352-2023 JUDGMENT.odt

22. Rule stands discharged.