Sh. Prahlad Swaroop Aggarwal vs Baldev Singh
2012 Latest Caselaw 1831 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 16.03.2012


+                   C.R.P. No.310/2005 & CM Nos.15855/2007


SH. PRAHLAD SWAROOP AGGARWAL                    ..... Petitioner
                 Through: Petitioner in person.

                    versus

BALDEV SINGH                                             ..... Respondent
                             Through:   None.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 This petition has challenged the order dated 10.02.2004 vide

which the review petition filed by the petitioner/plaintiff seeking a

review of the order and judgment dated 16.12.2003 had been dismissed.

2 Record shows that the present petitioner had filed a suit for

recovery of Rs.6,000/- against the defendant. Contention was that he had

extended a friendly loan of Rs.1,000/- which was on 26.10.1988;

Rs.2,000/- was advanced on 31.10.1988 at the interest rate of 3% per

month. The defendant executed a loan receipt of 31.10.1988 and pronote

on the receipt of 26.10.1988; inspite of repeated demands, amounts were

not paid; suit was accordingly filed. This was a suit under Order

XXXVII of the Code of Civil Procedure (hereinafter referred to as the

'Code').

3 The defendant had put in his appearance but leave to defend was

not filed within the stipulated period.

4 The petitioner in order to prove his case has relied upon the

aforenoted two documents i.e. receipt dated 26.10.1988 and the loan

receipt dated 31.10.1988. The first document is a promissory note of

Rs.1,000/- with interest at 3% per month; the second document is a

receipt sent by the defendant which states that he has taken Rs.2,000/-

from Prahlad Swaroop in cash at the rate of 3% interest per month

5 The trial Court had decreed the suit only for the amount of

Rs.1,000/-; it was of the view that the promissory note executed for the

aforenoted sum falls with the parameters of Order XXXVII of the Code;

a receipt purported to have been executed by the defendant would not

fall within the parameters of Order XXXVII of the Code; suit was

decreed only for the sum of Rs.1,000/- along with interest.

6 This judgment was the subject matter of the review; the Court was

of the view that no review was called for and since the second document

of the plaintiff is a receipt dated 31.10.1988, Order XXXVII of the Code

is not maintainable on the basis of this receipt. The Court was also of the

view that the claim of the plaintiff was time barred.

7 Record shows that the present suit had been filed by the plaintiff

on 26.10.1991. There are two documents which have been relied upon

by the plaintiff to substantiate his claim; he had obtained a part decree

qua the first document which was dated 26.10.1988; his claim qua the

second document i.e. document dated 31.10.1988 had been dismissed

for the reason that it was a time barred claim. This finding is patently

incorrect; the second document is dated 31.10.1988 and the suit filed on

26.10.1991 was well within the period of limitation i.e. three years from

the receipt of the document. The impugned judgment holding that the

review petition is not maintainable as the claim on the document dated

31.10.1988 was time barred suffers from an infirmity. The second

reason for rejection of the claim is that a receipt does not fall within the

parameters of Order XXXVII of the Code. A receipt also comes within

the scope of Order XXXVII of the Code; the Trial Judge had erred in

holding that the receipt does not fall within the domain of a suit under

Order XXXVII of the Code.

8 In a judgment of a Bench of this Court reported in 1982 (1) ILR

(Delhi) 320 Suhila Mehta Vs. Bansi Lal Arora this aspect had come up

for consideration and it was noted that the payment by the plaintiff as

application money and its acceptance by the defendant constitutes a

contract; it may be labeled as a receipt; it does not mean that it is not a

contract; there was a promise; there was a consideration; there was an

acceptance; all the elements essential for the formation of the contract

being present thus falling with the parameters of a suit under Order

XXXVII of the Code.

9 The impugned judgment had dismissed the review petition on

wrong parameters; the error was apparent on the face of the record; the

receipt being a contract did come within the parameters of a suit under

Order XXXVII of the Code; this receipt was dated 31.10.1988; suit was

filed on 26.10.1991 which was also within the limitation; no leave to

defend had been filed; the plaintiff was entitled to a decree on the

second document as well. Both the documents contained the element of

interest; suit is accordingly decreed in the sum of `6,000/- along with

pendente lite and further interest @ 9% per annum till realization.

Petition disposed of.

INDERMEET KAUR, J MARCH 16, 2012 A