Delhi High Court
Namdhari Food International ... vs Bush Food Overseas Private ... on 26 October, 2016
$~04.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 419/2016
% Judgment dated 26th October, 2016
NAMDHARI FOOD INTERNATIONAL
PRIVATE LTD ..... Plaintiff
Through : Mr.Naveen Sharma and Ms.Divyaa
Garg, Advs.
versus
BUSH FOOD OVERSEAS PRIVATE LIMITED ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
Plaintiff has filed the present suit under Order XXXVII of the Code of
Civil Procedure for recovery of Rs.2,02,00,000/-.
2. Summons were issued to the defendant in the prescribed form. The
defendants had entered appearance, which is evident upon reading of
the order sheets. Thereafter the plaintiff filed an application seeking
summons for judgment. Defendant has failed to file an application
seeking leave to defend. On 19.9.2016, when the matter was listed
before the Joint Registrar, counsel for the defendant had made a
statement that he is not getting any instruction from the defendant.
3. Learned counsel for the plaintiffs prays for a decree in terms of Order
XXXVII(3)(6) of the Code of Civil Procedure.
4. As per the plaint, defendant-company had approached the plaintiff
sometimes in the year 2008 for supply of rice. The goods were duly
supplied by the plaintiff for which the defendant paid the price of the
goods supplied. In the year 2012, defendant-company again approached
the plaintiff company for supply of rice. For the rice supplied,
defendant issued nine cheques of different dates in the total sum of
Rs.2,02,00,000/- in favour of the plaintiff-company. Details of the
nine cheques are as under:
S.No. Date Cheque No. Amount (in Rs.)
1. 08.08.2012 000055 23,00,000.00
2. 11.08.2012 000056 24,00,000.00
3. 19.08.2012 000957 25,00,000.00
4. 20.08.2012 000958 25,00,000.00
5. 22.08.2012 000960 25,00,000.00
6. 23.08.2012 000961 15,00,000.00
7. 08.10.2012 000475 20,00,000.00
8. 10.10.2012 000476 20,00,000.00
9. 12.10.2012 000477 25,00,000.00
5. The aforesaid cheques upon presentation were returned for the reasons
given below:
S.No. Date Cheque Amount (in Reason
No. Rs.)
1. 08.08.2012 000055 23,00,000.00 Exceeds
Arrangement
2. 11.08.2012 000056 24,00,000.00 Not Presented
in Bank
3. 19.08.2012 000957 25,00,000.00 Insufficient
Funds
4. 20.08.2012 000958 25,00,000.00 Insufficient
Funds
5. 22.08.2012 000960 25,00,000.00 Exceeds
Arrangement
6. 23.08.2012 000961 15,00,000.00 Exceeds
Arrangement
7. 08.10.2012 000475 20,00,000.00 Payment
Stopped by
Drawer
8. 10.10.2012 000476 20,00,000.00 Payment
Stopped by
Drawer
9. 12.10.2012 000477 25,00,000.00 Payment
Stopped by
Drawer
6. Learned counsel for the plaintiff submits that after the return/dishonour
of the cheques, the plaintiff made repeated request to the defendants to
clear the outstanding, however, neither the requests of the plaintiff was
responded to nor the amount was cleared by the defendant.
7. I have heard learned counsel for the plaintiff and also perused the
plaint, application and the documents filed along with the plaint.
8. It may be noticed that upon perusal of the records shows that the suit
was filed by the plaintiff on 10.8.2015 vide Diary No.394265, and,
thus, the present suit is within limitation. The plaintiffs have also
placed on record the original cheques.
9. Order XXXVII of the Code of Civil Procedure reads as under:
ORDER XXXVII
SUMMARY PROCEDURE 2[***]
[1. Court and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Courts, namely :-
(a) High Courts, City Civil Courts and Courts of Small
Causes: and
(b) other Courts:
Provided that in respect of the Courts referred to in clause
(b), the High Court may, by notification in the Official Gazette,
restrict the operation of this Order only to such categories of
suits as it deems proper, and may also, from time to time, as the
circumstances of the case may require, by subsequent
notification in the official Gazette, further restrict, enlarge 6r
vary, the categories of suits to be brought under the operation
of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order
applies to the following classes of suits, namely:-
(a) suits upon bills of exchange, hundies and Promissory
notes:
(b) suits in which the plaintiff seeks only to recover a
debt or liquidated demand in money payable by the
defendant, with or without interest, arising,-
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be
recovered is a fixed sum of money or in the
nature of a debt other than a penalty; or
(iii) on a guarantee, Where the claim against the
principal is in respect of a debt or liquidated
demand only.]
10. As per order XXX of the Code of Civil Procedure, a suit based on
Hundies, bills of exchange, promissory notes, would fall within the
scope of Order XXXVII of the Code of Civil Procedure. Since the
present suit is based on cheques, the suit is maintainable under the
provisions of Order XXXVII of the Code of Civil Procedure.
11. Further Order XXXVII Rule 2(3) of the Code of Civil Procedure
prescribes the manner in which after service the defendant is to enter
appearance. Thereafter the procedure prescribed is for the plaintiff to
file summons for judgment and thereafter the defendant is to file leave
to defend within a period of ten days thereafter.
12. In this case, after the summons for judgment were served upon, the
defendant has failed to make an application seeking leave to defend. In
fact, the counsel for the defendant had made a statement before the
Joint Registrar that he is not receiving instructions from the defendant.
13. Order XXXVII Rules 3(6)(a) of the Code of Civil Procedure provides
that in case leave to defend is not filed, the plaintiff is entitled to a
decree forthwith. Order XXXVII Rules 3(6) of the Code of Civil reads
as under:
[3. Procedure for the appearance of defendant
(6) At the hearing of such summons for judgement,-
(a) if the defendant has not applied for leave to
defend, or if such application has been made and is
refused, the plaintiff shall be entitled to judgement
forthwith;
14. Accordingly, the present suit is decreed in favour of the plaintiff and
against the defendant. The plaintiff would be entitled to pendente lite
and future interest at the rate of 8%, per annum. Let a decree sheet be
drawn up accordingly.
I.A. 18533/2015 (STAY)
15. Application stands disposed of in view of the order passed above.
G.S.SISTANI, J
OCTOBER 26, 2016
msr
