Delhi High Court
Ms. Gita Singh vs Smt. Prem Lata Meena & Ors. on 18 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No.1020/2014
% 18th November, 2014
MS. GITA SINGH ..... Petitioner
Through: Mr. Rajesh Kumar, Advocate.
Versus
SMT. PREM LATA MEENA & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.18924/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ C.M.(M) No.1020/2014
2. This petition under Article 227 of the Constitution of India
impugns the judgment of the trial court dated 28.7.2014 by which the trial
court has allowed the leave to defend application in a suit for recovery filed
by the petitioner/plaintiff.
3. I have asked the counsel for the petitioner to show me any para
in the plaint averring as to how the suit is to be filed under Order XXXVII of
Code of Civil Procedure, 1908 (CPC), and to which query counsel for the
petitioner had no option but to concede that in the plaint no averment is
made as to how the suit is filed and maintainable under Order XXXVII CPC.
4. The subject suit seems to be filed under Order XXXVII CPC on
the ground that an agreement to sell shows payment of consideration to a
defendant, but, in law, such an agreement to sell cannot be a basis of an
Order XXXVII CPC suit.
5. I have recently had an occasion to examine this very aspect in
the judgment dated 13.11.2014 in the case of Delhi Power Supply Company
Ltd. (Dt. Ltd.) Vs. M/s. Hindustan Vidyut Products in C.R.P. No.72/2012.
Paras 4 to 7 of the said judgment read as under:-
"4. However, in my opinion, the present petition is liable to be
allowed on a totally separate ground, and which goes to the root of the
matter because the subject suit which is filed and treated under Order
XXXVII CPC could not have been filed and treated under Order
XXXVII CPC. The reasons for the same are that the
respondent/plaintiff by the suit claimed recovery of earnest money
deposited with the petitioner/defendant, and which earnest money was
given with respect to a tender which was submitted by the
respondent/plaintiff to the petitioner/defendant. The suit was filed
under Order XXXVII CPC stating that the earnest money amount was
not refunded, and therefore the same was liable to be refunded to the
respondent/plaintiff. For the suit to be considered under Order
XXXVII CPC, the respondent/plaintiff stated the following in para 6
of the plaint:-
" That the present suit is under order XXXVII of CPC and
the plaintiff desires to file the same under the said order. The
suit is based on written contract entered into between the
parties vide notice inviting tenders and depositing the earnest
money with them and the same was confirmed by the
defendant vide their various letters as well as reply to the
request for refund of the earnest money thereby confirming
the aforesaid refund of earnest money amounting to
Rs.2,31,000/-. However, the defendant failed to honour the
contract and on the day of filing the present suit, the defendant
is in arrears for a sum of Rs.2,31,000/-. However the plaintiff
is claiming the interest @ 17.25% per annum for which the
defendant is liable to pay."
5. A suit under Order XXXVII CPC lies in terms of Order XXXVII
Rule 1 Sub-Rule (2) (b) (i) CPC if the amount claimed is a debt or a
liquidated demand of moneys arising on a written contract i.e for a
suit to be maintainable under Order XXXVII CPC it is not enough if
there is a document evidencing payment by the plaintiff to the
defendant, but in fact the document must contain a liquidated demand
and an acknowledgment of debt. This is because it is only a promise
to pay which creates a liquidated demand or a debt. A simple
document showing payment by the plaintiff to the defendant will not
be a written contract as is contemplated by Order XXXVII Rule 1 Sub
Rule (2) (b) (i) CPC.
6. I am supported in my conclusion by the judgment of a learned
Single Judge of this Court in case of Syed Moosa Emami Vs. Sunil
Kumar Gilani & Anr. AIR 1982 Delhi 590, which holds that no suit
lies under Order XXXVII CPC where the plaintiff has given an
amount to the defendant by a cheque, and which has been encashed,
inasmuch as a suit under Order XXXVII CPC lies when a cheque is in
favour of the plaintiff and it gets dishonoured. Learned Single Judge
of this Court in the case of Syed Moosa (supra) has held that when a
plaintiff made a payment by cheque to the defendant, at best that will
be an evidence of giving moneys to the defendant, but that will not be
a basis to file a suit under Order XXXVII CPC on the ground that
money has been paid by cheque. Money being paid by a cheque is an
evidence of payment but not an evidence of liability in favour of the
plaintiff, and consequently the suit was held not to be maintainable
under Order XXXVII CPC once there was no cheque which was
dishonoured, and which was issued in favour of the plaintiff by the
defendant.
7. In my opinion, the trial court at the time of passing of the judgment
by default on 07.4.2003 ought to have first considered the
maintainability of the suit itself under Order XXXVII CPC. If the suit
itself was not maintainable under Order XXXVII CPC, the non-filing
of appearance under Order XXXVII CPC would be immaterial. The
observations of the Supreme Court in the case of Rajni Kumar
(supra) would have applied only if the suit was firstly filed under
Order XXXVII CPC. I am allowing the petitioner/defendant to take
up the non-maintainability of the subject suit, which only is a legal
issue arising from the admitted facts i.e admitted facts stated in the
written statement and it goes to the root of the matter."
6. Since in the present case, the said suit was not maintainable
under Order XXXVII CPC, in fact there was no need to even file a leave to
defend application and consequently if there is a leave to defend application
the same has been rightly allowed because the suit is to be treated as an
ordinary suit and no leave to defend application was required to have been
filed.
7. Dismissed.
VALMIKI J. MEHTA, J
NOVEMBER 18, 2014
Ne
