Ishwar Dass vs Harbans Singh
1994 Latest Caselaw 204 Del

JUDGMENT

Mahinder Narain, J.

1. The plaintiff has filed the above said suit under Order 37 of the C.P.C. claiming a sum of Rs. 9 lakhs. The plaintiff had originally filed the suit in which he has claimed Rs. 14,50,000/-, but that plaint was amended, and the claim has been restricted to Rs. 9 lakhs only.

2. An application for leave to defend has been filed by the defendant. This is I.A. No. 10905 of 1993. It is contended by defendant that the claim in the plaintiff's suit goes beyond the scope of Order 37 of C.P.C. inasmuch as the plaintiff is not entitled to claim any interest after the date of the decree.

3. For examining this contention, it is necessary to look at the proviso of Order 37 of the C.P.C. The relevant portion of Order 37 of the C.P.C. is Sub-rule 3 of Rule 2 C.P.C., when reads as under:-

"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."

4. It is contended by Mr. Makhija that Sub-clause '3' above said means that no interest can be ordered to be paid after the date of the decree, therefore, the whole of the claim is not within Order 37 C.P.C.

5. Mr. Mehta, on the other hand, contends that the interpretation given by Mr. Makhija is incorrect, inasmuch as Clause '3' refers to passing of a decree on admission by the Court, and the statutory direction of not ordering payment of interest after the date of decree, is not applicable to this case for the reason that the defendant has entered an appearance, and sought leave to defend. The defendant having entered appearance, the provision of not giving post-decree interest is not applicable to this case.

6. I am inclined to agree with what has been stated by Mr. Mehta. The provision in question, relied upon the Mr. Makhija applies to an ex parte matter. After the decree is passed, the decree holder can proceed to execution of the decree. No notice is required is postulated under afore-quoted Sub-clause '3' of Order 37 C.P.C.

7. It is not disputed between the parties that there was an agreement to sell dated 5.9.88. That a sum of Rs. 7 lakhs was paid by the plaintiff to the defendant, who was to execute the sale-deed regarding L/32, Lajpat Nagar. The claim in the suit only seeks to recover the amount of Rs. 7 lakhs which has been received by the defendant in terms of Clause '6' of the agreement to sale dated 5.9.88.

8. Clause '6' of the agreement dated 5.9.88 between the parties reads as under:-

"That if the Vendee fails or deny to make the balance payment within stipulated period mentioned above, then the Advance payment of Rs. 2 lakhs paid by the Vendee to the Vendor shall stand forfeited. And if the Vendor fails or deny to complete the sale/or handover the possession to the Vendee within above said period, then, the Vendor shall pay double amount of Advance money, i.e., Rs. 4 lakhs to the Vendee."

9. Total amount which was paid to the Vendor was Rs. 7 lakhs . Rs. 2 lakhs was advance amount and the Vendor is the person who has not completed the sale. The parties contemplated payment of double of the amount of advance of Rs. 2 lakhs, i.e., Rs. 4 lakhs upon Vendor's failure.

10. Therefore, the amount which is claimed in this suit by intended purchaser is to pay Rs. 9 lakhs (Rs. 2 lakhs Advance + Rs. 5 lakhs = Rs. 7 lakhs + Rs. 2 lakhs = Rs. 9 lakhs). The total amount thus claimed in this suit is Rs. 9 lakhs is arrived at by taking into account the money paid plus the agreed liquidated agreed amount, i.e., the liquidated demand. The entire claim is thus within the four corners of the Order 37 of the C.P.C. This position is also supported by 1984 Civil DRJ 150. This contention of Mr. Makhija has, therefore, to be rejected.

11. It is contended by Mr. Makhija that the reason why leave to defend must be granted is that defendant has claimed for damages against the plaintiff, and his claim for damage is friable issue.

12. This Court (Justice Bahri) has held in 1990 RLR 556 that the provision of Order 37 of C.P.C as applicable in India, and similar provision which is exists in England are of different effect. Because of the difference under the provision of the C.P.C. of India, the claim for damages is not maintainable in a suit under Order 37 C.P.C. The claim for damages, which Mr. Makhija contends raises a friable issue, cannot be sustained. Justice Bahri also relies upon the judgment in Krishna and Co. v. Bank of India, RFA (OS) 10/81 (D) decided by the Delhi High Court on 25.8.82, according to which this court disallowed adjustment of claim of damages in an Order 37 suit.

13. For this reason none of the two contentions of Mr. Makhija have any merit.

The defendant is, therefore, not entitled to leave to defend.

This being the position, the plaintiff is entitled to decree, and a decree is passed in his favor for a sum of Rs. 9 lakhs. The defendant shall deposit the decretal amount in Court within one month.

Since defendant has had the money since 1988, plaintiff is entitled to have interest on decretal amount. Plaintiff shall be entitled to get simple interest at the rate of 12% per annum from the date of the decree till realization, if the defendant does not deposit the suit amount within one month from today.