Delhi High Court

Harsha Capital Services Ltd vs Ravinder Kaur Narang on 30 April, 2014

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of Decision: 30.04.2014
+     CM(M) 611/2013
      HARSHA CAPITAL SERVICES LTD             ..... Petitioner
                   Through: Mr. Anil Maheshwari, Director
                            of the company in person

                         versus

      RAVINDER KAUR NARANG                               ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI (Open Court)

1. The petitioner is aggrieved by an order dated 4.5.2013 whereby his suit under Order 37 was converted into a regular suit. The Trial Court had dismissed the petitioner's suit vide order dated 3.6.2011. However, it allowed the petitioner/plaintiff's application under Section 114 read with Section 151, CPC and restored the suit vide the impugned order. But the Court was of the view that an Order 37 suit was not made out; hence, it ought to be and was converted into a regular suit. Summons was directed to be issued upon requisite steps being taken by the plaintiff. The Trial Court was of the view that the last date of payment of instalment of loan taken from the plaintiff by the defendant was indeterminate and being disputed questions of fact, could be considered and established through a trial in a regular suit.

2. The Trial Court noted the plaintiff's case as: loan had been advanced to the defendant on 18.3.1998 and 11.3.1998 and part re-payments were

made on 11.6.2003, 25.7.2007, 11.10.2007, 23.2.2009, August 2009 and 8.9.2008; and that the acknowledgment of liability of Rs.12,80,000/- by the defendant vide letter dated 14.7.2008 had now been brought to the notice of the Court. The plaintiff had contended that if the said letter is taken into consideration, the suit could not be held to be time barred because the defendant had acknowledged the liability to pay the suit amount. The Court was of the view that the photocopy was not an admissible document and unless it was proved, it would constitute no evidence and thus, the case for decree of a suit under Order 37 CPC was not made out. Furthermore, the suit was for recovery of 13,47,000/- whereas the alleged acknowledgment of liability was only of Rs.12,80,000/-. The plaintiff had also relied upon the photocopy of a cheque for Rs.2,00,000/ from the defendant. The Court was of the view that the plaintiff ought to prove the photocopy of the letter dated 14.7.2008 to establish his case. Therefore, the plaint was converted into a regular suit.

3. The authorized representative of the company has relied upon Supreme Court's judgment in Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner (2004) 3 SCC 137, to contend that for the maintainability of the suit under Order 37, all that has to be seen are the averments made in the plaint and not any response thereto. He submits that where the cause of action is clear, then the judgment has to be pronounced. He also placed reliance upon Dura Line India Pvt. Ltd. v. BPL Broadband Network (P) Ltd. AIR 2004 Del. 186. The case was in respect of an Order 37 suit regarding a running account liability. However, this Court notes that in the above mentioned judgment there was a clear acknowledgment and confirmation of balance payable. In the present suit there is no such clear

acknowledgment of this nature. This Court is of the view that reliance upon both the judgments is misplaced and since the case of Sopan Sukhdev Sable (supra) dealt with the case pertaining to Order 7 Rule 11 CPC. The Court only elaborated upon the established principle: that in disposing off an application under Order 7 Rule 11 CPC, all that has to be seen is, whether the plaint has disclosed a cause of action dehors any defence that may have been taken by the defendant. The Court held as under:

"There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the

plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a- vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.

Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.

As noted supra, the Order VII Rule 11 does not justify rejection of any particular portion of the plaint. Order VI Rule 16 of the Code is relevant in this regard. It deals with 'striking out pleadings'. It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the Court."

4. Clearly, therefore, the judgment was not with respect to a suit under

Order 37 CPC. The pronouncement of a decree under Order 37 CPC is not

for the asking. The Court has to see whether a case under the said provision

is made out, on the basis of clear admissions of liability by the defendant.

Insofar as, the Court has found that there was no clear admission on the part

of the defendant, through a document admissible in law, of the liability

amount claimed in the suit i.e., Rs. 13,47,000/- or even of a lesser amount

i.e., Rs. 12,80,000/-, the suit would not be maintainable under Order 37

CPC, in a summary procedure prescribed under that provision. The

impugned order has been passed on the basis of the records. It cannot be

said to suffer from material irregularity. No case made out for interference

with it. The petition is without merit and is accordingly dismissed.