Syed Mossa Emami vs Sunil Kumar Gilani And Another
1984 Latest Caselaw 310 Del

JUDGMENT

Yogeshwar Dayal, J.

1. This revision petition is directed against an order of the learned trial court dated December 5, 1981, whereby the learned trial court accepted an application field on behalf of the respondents for leave to appear and contest the suit purporting so have been filed under the provisos of O. 37 of the CPC.

2. The plaintiff-petitioner had filed a purporting to be under O. 37 of the CPC for the recovery of Rs. 10,000 allegedly on the basis of two cheques.

3. The case of the plaintiff-petitioner is that he is a permanent resident of Iran and has come to India for the treatment of his eyes. During the stay in Delhi, plaintiff came into contact with defendant No.2 and became his close friend. It was stated in the plaint that defendant No.1 is the son of defendant no.2 . It was further stated that defendant No.1 requested the plaintiff to give some friendly loan as he had run short of some money in a transaction of business. It was further averred that the plaintiff in good faith and being a friend of defendants Nos. 1 and 2 consented to give money as required by defendant No.1. It was also stated that defendant No.2 gave surety for the refund of the said amount and stood guarantor on behalf of defendant No.1. The plaintiff as such gave a friendly loan of Rs. 4,000 by a cheque drawn on the State Bank of India, Moti Naga, New Delhi. It was further averred that the plaintiff also paid a sum of Rs. 6,000, vide cheque dated April 17, 1980. Thus,m the plaintiff gave a total loan of Rs. 10,000. Defendant No.1 was sued as a principal debtor and defendant no.2 was sued as a guarantor. It was further stated that in spite of a notice of demand the amount had not been returned.

4. On the service of summons for judgment, the defendant-respondents applied for leave to defend. The learned trial court, in view of the defense raised by the respondents, took the view that the defense taken raised a friable issue and granted have to defend unconditionally.

5. Before I go into the question whether lave ads been granted rightly or wrongly, it appears to me that the suit is not of the category contemplated by sub.-r. (2) of r.1 of O. 37 of the CPC.

6. Mr. Sharma, who appears, for the plaintiff-petitioner, contends that his case falls within clause (a) of sub-r. (2) of rule 1 of O. 37 of the CPC which reads as under .

"R-1. courts and classes of suits to which the Order is to apply .....

(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, hand is and promissory notes :-..........."

7. The arguments of the learned counsel it that his suit is on the basis of cheques. The "cheque" is certainly a bill of exchange. But this suit is not based on "cheque" because there is no cheque in favor of the plaintiff. The suit is in fact based on a loan transaction. When somebody files a suit on the basis of bills of exchange, hundis, or promissory, notes, the documents, are annexed with the plaint and are drawn in favor of the plaintiff of endorsed in his favor. Here the cheques on the basis of which the suit is allegedly filed has already been honoured by the bankers of the plaintiff and were in favor of the defendant-respondent and the money was utilised by the defendant. such a suit cannot be called a suit based upon a cheque.

8. So, if the suit itself is not upon a bill of exchange or hundi or promissory, note, no question arises of the applicability of the aforesaid clause (a) of sub-r. (2) of r.1 of O. 37 of the CPC. It is not the case of the plaintiff-petitioner that his case falls under clause (b) of sub-r. (2) of r. 1 of O. 37 of the CPC.

9. In this view of the matter, there is no merit in the revision petition and the same is dismissed. Parties, are, however, left to bear their own costs.