Som Datt Finance Corporation Ltd. vs Labels International Pvt. Ltd. ...
2001 Latest Caselaw 1938 Del

JUDGMENT

S.K. Agarwal, J.

1. By this application under Section 151 of the code of Civil Procedure (for short 'CPC'), the plaintiff is seeking rectification of order dated 17th October, 2000, directions for registration of suit under Order 37 CPC and for issuance of summons in the suit in Form 4 in Appendix 'B' CPC.

2. Learned Senior Advocate for plaintiff/applicant submits that this suit was filed under Order 37 CPC for recovery of Rs. 65,39,163/- and the interest thereon. The plaint contained specific the averment to that effect and fulfilled other requirements of the order. On 17th October, 2000 when it came up for hearing was no argument as to the maintainability of the suit under Order 37 CPC. The averments made in the plaint were accepted and summons were ordered to be issued to the defendants. As there was no specific order that the summons should be issued in Form No. 4 in Appendix B, the defendants were served with summons on the ordinary format and that there is an apparent error. In fact summons in the suit should have been issued in Form No.4 in Appendix B. Learned counsel for defendants 1 and 2, on the other hand, argued that plaintiff is seeking change in the nature of registration of plaint as the suit, which is not permissible; plaintiff could have preferred appeal if he was not satisfied and that the application for rectification is not maintainable as there is no mistake in the impugned order. He further argued that neither the original contract nor the true copy thereof was filed, therefore, the suit under Order 37 CPC is not maintainable and it was rightly not registered under this Order.

3. I have considered the rival contentions. Order 37 deals with summary proceedings for suits for quick disposal. The order applies to (a) suits based upon bill of exchange, hundies and promissory notes, (b) suits where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a written contract etc. This suit was instituted on contract. Rule 2 of Order 37 provides for institution of summary suits. There is inscription immediately below the number of the suit in the title of the suit. In the plaint there is a specific averment to the effect that it is filed under Order 37. It reads:-

"The plaintiff states that the plaintiff is filing the present suit under Order xxxvII of the Code of Civil Procedure, 1908 inasmuch as the defendants and each one of them have unconditionally acknowledged their debts and liabilities towards the plaintiff. The present suit is for recovery of debt only payable in money by the defendants with interest under written contract between the parties."

4. The plaintiff had also filed a copy of the contract on which the suit was based. Thus there has been a substantial compliance of the above rule. The averments made in the plaint were accepted and the summons were ordered to be issued to the defendants. Learned counsel for the defendant did not refer to any specific provision of law requiring specific order by the court that the summons should be issued in Form No.4 in Appendix B. The provisions of Order 37 Rule 2 CPC are procedural in nature. The plaint shows that there has been compliance with the provisions of Order 37 Rule (2)(1)(a), (b) and (c). Thus the Registry ought to have registered the suit under Order 37 and the summons should have been issued in Form 4 in Appendix B as provided by Sub-Rule (2) of Rule 2 of Order 37 CPC.

5. For the foregoing reasons, the application is allowed. Registry is directed to register the suit under Order 37 CPC. In order to avoid any technical objection, let fresh summons under Order 37 in Form No.4 in Appendix B of CPC for service on the defendants be issued.

6. Application stands disposed of.