Kiranjit Singh vs Madan Lal Khanna
1993 Latest Caselaw 477 Del

JUDGMENT

Sat Pal, J.

(1) This is a suit for recovery of a sum of Rs.l4,62,000.00 with interest pendente life and future interest at the rate of 24 per cent per annum. Though initially the suit was filed as an ordinary one, the plaintiff moved an application bearing Ia No. 1390/92 under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for amendment of the plaint and prayed that the suit be treated as one under Order 37 of the Code. The said application was allowed and the suit has been treated as one under Order 37 of the Code.

(2) After the service of the summons Mr. Vinod Kumar, Advocate put in appearance on behalf of the defendant before the Joint Registrar on 25th May, 1992. He also undertook to file power of attorney along with memo of appearance shortly.

(3) In terms of order dated 23rd November, 1992 passed by the Joint Registrar, summons for judgment issued against the defendant for 27th September, 1992 were duly served on the said defendant on 24th August, 1992. Since no application for leave to defend the suit was filed by the defendant within the statutory period, the case was fixed before the Court on 2nd March, 1993, on which date the learned counsel for the plaintiff prayed for time to file the receipts Along with an affidavit and the case was adjourned to 14th April, 1993. The case was, however, taken up on 15th April, 1993 and since none appeared on behalf of the plaintiff, the case was adjourned to 13thJuly, 1993. Meanwhile, an application bearing Ia No.4409/93 under section 151 of the Code for proponing the date of hearing was filed on behalf of the plaintiff and this application was allowed on 30th April, 1993 and the hearing of the case was proponed to 6th July, 1993 but on 6th July, 1993 the case was adjourned to 13th July, 1993. On 13th July, 1993 Mr.Vinod Kumar, the learned counsel for the defendant appeared and submitted that he wanted to examine the court records regarding service on the defendant and the case was adjourned to 19th July, 1993. On 19th July, 1993 the case was adjourned to 20th July, 1993. On 20th July, 1993 the defendant appeared in person and submitted that he was moving an application for setting aside the order dated 5th January, 1993 passed against him in the matter. Since as per the report, the defendant had been served through affixation by the High Court Process Agency on 24th August, 1992 and inspite of the fact that the learned counsel had appeared or behalf of the defendant in Court on 13th July, 1993 but no application had been filed so far, I adjourned the case to 5th August, 1993 subject to the condition that the defendant would furnish a bank guarantee of a nationalised bank for the sum ofRs.l4,62,000.00 within two weeks. In the order passed on 20th July, 1993 it was made clear that in case the bank guarantee is not furnished within two weeks, no further opportunity will be given to the defendant and the arguments will be heard on the date fixed.

(4) Since the defendant failed to furnish the bank guarantee in terms of the order passed on 20th July, 1993, the arguments were heard in part on 5th August, 1993 and the case was adjourned to 16th August, 1993 to enable the learned counsel for the plaintiff to file the original receipts along with an affidavit.

(5) Meanwhile, the defendant filed an application bearing Ia No. 16810/93 under Order 37 Rule 3 Sub-rule 5 of the Code and it was prayed in this application that the defendant be allowed to contest the matter on merits unconditionally or such other orders be passed which this Court deem fit and proper in the circumstances of the case. This application also came up for hearing on 5th August, 1993 and hearing of this application was also adjourned to 16th August, 1993. On 16th August, 1993 the main suit as well as this application were adjourned to 19th August, 1993 and the learned counsel for the plaintiff as well as for the defendant/applicant addressed arguments.

(6) Before passing the orders in the main suit first I would like to dispose of Ia 16810/ 93 filed on behalf of the defendant in the above suit. Mr.Vinod Kumar, the learned counsel for the defendant submitted that the defendant should be allowed to contest the matter on merits unconditionally inasmuch as the receipts on the basis of which the present suit has been filed under Order 37 of the Code, are neither debt nor a liquidated demand. He further submitted that no promise to return the money in these receipts has been made by the defendant. The learned counsel, however, admitted that the bank guarantee of a nationalised bank for a sum ofRs.l4,62,000.00 as directed by order dated 20th July, 1993, has not been furnished by the defendant so far. He submitted that the defendant could not make arrangement to furnish this bank guarantee within the stipulated period. He, however, submitted that the defendant should be given further time of four weeks to comply with the order dated 20th July, 1993. The learned counsel also submitted that the service of summons for judgment was not effected on the defendant.

(7) From the record I find that the learned counsel for the defendant had put in appearance on behalf of the defendant on 25th May, 1992. The report of the process server indicates that he visited the premises of the defendant on 24th August, 1992 and since the premises of the defendant were found locked, he pasted the summons on the premises. It may be pointed out here that there is another report which shows that the process server again visited the premises of the defendant on 9th November, 1992 and he found there a lady who did not disclose her name. When the process server asked her about the whereabouts of the defendant, she told him that he was not available at the premises. Accordingly, the process server left a copy of the summons at the premises. It was in these circumstances that the Joint Registrar passed order on 23rd November, 1992 that according to the office report summons for judgment issued against the defendant for 27th September, 1992 stood duly served on the said defendant on 24th August, 1992. Inspite of the service, the defendant did not file any application for leave to defend within the stipulated period and the case was fixed for arguments on 2nd March, 1993. As stated earlier the learned counsel for the defendant appeared on 13th July, 1993 when the case was fixed for arguments but did not file any application for leave to defend. It was only on 20th July, 1993 when the case was fixed for arguments the defendant himself appeared and sought adjournment. Keeping in view these facts, of the case I adjourned the case to 5th August, 1993 subject to the condition that the defendant furnishes a bank guarantee of a nationalised bank for the sum of Rs. 14,62,000.00 within two weeks. It was made clear in the order passed on 20thJuly, 1993 that in case the bank guarantee is not furnished within two weeks, no further opportunity will be given to the defendant. Admittedly the defendant has not complied with the order dated 20th July, 1993 and as such he is not entitled to be heard in the case. The application is liable to be rejected on this ground. Even otherwise I do not find any merit in this application inasmuch as the plaintiff in the present case seeks to recover a liquidated demand in money payable by the defendant arising on a written contract. Accordingly, this application is dismissed.

(8) Now coming to the merits of the suit, it has been stated in the plaint that the defendant represented to the plaintiff that he was a general attorney holder of his brother Dr. Hira Lal Khanna, who was the owner of property bearing No.52/78, Punjabi Bagh, New Delhi. The defendant further told the plaintiff that he was fully empowered to book the floor space in the said proposed building and on this representation, the plaintiff paid a sum of Rs.8,50,000.00 against cash receipts, all dated 17th January, 1989 for booking of the floor space in the proposed building. It has further been stated that the plaintiff received a letter dated25th September, 1989 from Dr.Hira Lal Khanna informing the plaintiff that he was the owner of the aforesaid property and he had cancelled general power of attorney dated 28th May, 1980 executed in favor of the defendant and all the documentations which the defendant had entered into on his behalf stood cancelled. Thereafter the plaintiff approached the defendant who assured the plaintiff that he would pay back the entire amount of Rs.8,50,000.00 Along with interest within a period of few days. It has further ;been alleged in the plaint that despite various personal visits by the plaintiff and telephonic reminders, the defendant failed to pay back the said amount with interest. hence the present suit has been filed.

(9) As stated hereinabove the summons for judgment issued against the defendant for 27th September, 1992 were duly.served on the defendant on 24th August, 1992. Even thereafter another attempt was made by the process server on 9th November, 1992 and a copy of the notice was left at the premises of the defendant but the defendant failed to file any application for leave to defend the suit within the stipulated period.

(10) I have perused the original receipts filed by the plaintiff Along with the additional affidavit dated 16th August, 1993. All these receipts have been executed by the defendant on 17th January, 1989. Eight receipts are of Rs. 1,00,000.00 each and 9th receipt is of Rs.50,000.00 . Since the language of all the receipts except the amount is identical one of the receipt is reproduced hereinbelow:- "RECEIVEDWITH Thanks From Mr. Kiranjit Singh S/O Shri Amarjeet Singh, Resident Of A-13, Niti Bagh, New Delhi A Sum OFRS.50,000.00 (RUPEES Fifty Thousand ONLY) In Cash On Account Of Provisional Booking Of Residential Flat At Proposed Residential Building At 52/78, Punjabi Bagh, New DELHI. This Does Not Constitute A Firm Booking And Confers No Rights On The PAYER. For H.L. Khanna (HUF) sd/- 17.1.89 (M.L. KHANNA) General ATtorNEY."

(11) From these receipts it is clear that the entire amount of Rs.8,50,000.00 was given by the plaintiff to the defendant on account of provisional booking of a residential flat on proposed residential building at 52/78, Punjabi Bagh, NewDelhi. Even in Ia No.6810/93 which was filed on behalf of the defendant under Order 37 rule 3 Sub-rule 5 of the Code seeking permission of this Court to contest the matter on merits unconditionally, the execution of these receipts has not been controverter by the defendant. From these receipts it is clear that these are in the nature of written contract and a suit to recover the liquidated demand in money payable by the defendant on the basis of these receipts is maintainable under order 37 of the Code. The view I am taking is supported by a judgment of this Court in Smnt. Sushila Mehta vs. BansiLal Arora, 2nd (1982) 1 Delhi 320.

(12) As stated hereinabove the defendant failed to move an application for leave to defend within the specified time. Accordingly, the plaintiff is entitled to judgment forthwith and the allegations in the plaint are deemed to have been admitted and the suit has to be decreed in terms of Sub-rule (6)(a) of Rule 3 of Order 37 of the Code.

(13) The suit has to be decreed on another ground also. As stated earlier, on 20th July, 1993 the defendant had appeared in person and sought adjournment to enable him to move an application for setting aside the order dated 5th January, 1993 and the adjournment was granted to the defendant subject to the condition that he furnishes a bank guarantee of a nationalised bank for the sum of Rs. 14,62,000.00 within two weeks from the date of the order. Since the defendant failed to furnish the bank guarantee of the said amount within the stipulated period, the suit is liable to be decreed.

(14) In view of the above discussion the suit for the recovery of Rs.l4,62,000.00 is decreed with costs in favor of the plaintiff and against the defendant. It is further ordered that the plaintiff will be entitled to pendente lite and future interest at the rate of 18 per cent per annum till realisation. Decree may be drawn accordingly.