Delhi High Court
Surjeet Kaur vs Vimla Arora (Deceased) Through ... on 7 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.176/2017 and C.M. No.24156/2017 (stay)
% 7th November, 2017
SURJEET KAUR ..... Appellant
Through: Mr. P.P. Ahuja, Advocate.
versus
VIMLA ARORA (DECEASED) THROUGH HER LRS. & ANR.
..... Respondents
Through: Respondent no.2 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of Code
of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant
no.2 impugning the judgments of the courts below; of the Trial Court
dated 6.11.2013 and the First Appellate Court dated 9.1.2017; by
which the courts below have dismissed the application filed by the
appellant/defendant no.2 under Order XXXVII Rule 4 CPC for setting
aside the judgment and decree dated 9.2.2004.
2. I may note that plaintiff in the suit was Smt. Vimla Arora
who has since expired and is represented by her four legal heirs who
are respondent nos.1A to 1D in this appeal, and these respondent
nos.1A to 1D in spite of service are not appearing today. Counsel for
the appellant also informs this Court that the respondent no.2 herein
and who was the defendant no.1 in the trial court has already paid a
sum of Rs.1.50 lacs to the plaintiff i.e Smt. Vimla Arora and which the
plaintiff has received in full and final satisfaction of her claims.
3. The limited issue to be decided in this Regular Second
Appeal is that whether the suit under Order XXXVII CPC could have
been filed by the plaintiff Smt. Vimla Arora as against the
appellant/defendant no.2, who is pleaded to be a guarantor as per a
verbal guarantee agreement.
4. For disposal of this appeal, the following substantial
question of law is framed:-
"Whether the courts below have not erred in dismissing the
application under Order XXXVII Rule 4 CPC filed by the
appellant/defendant no.2 inasmuch as once the suit itself was not
maintainable against the appellant/defendant no.2 under Order
XXXVII CPC, then the procedure under Order XXXVII could
not have come into play whether for the filing leave to defend
application or for any limitation period for filing leave to defend
application or for any limitation period to set aside any ex-parte
decree obtained under Order XXXVII CPC?"
5. Order XXXVII Rule 1 CPC reads as under:-
" Order 37 Rule 1. Courts 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 or 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) suit 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."
6. No doubt, Order XXXVII Rule 1 Sub-Rule 2(b) (iii) CPC
only states of a guarantee, and which guarantee can be interpreted to
mean an oral agreement or a written guarantee, however, the very
intendment of the legislature for bringing the Order XXXVII is that
the debt/liquidated demand is clear because of a written instrument
and it for that reason the summary procedure is provided to the
plaintiff unlike the ordinary procedure of disposing of the suit after
trial. In my opinion, therefore when the expression „guarantee‟ is used
under Order XXXVII Rule 1 Sub-Rule 2(b)(iii) then such expression
„guarantee‟, since it is co-relatable to the words debt or liquidated
demand in money, therefore, the guarantee would have to be a written
guarantee document containing the debt or liquidated amount which
the plaintiff in a suit claims.
7. I may note that a learned Single Judge of this Court has
similarly held in the case of Tarun Sharma Vs.Ali Zulfikar Ahmed
and Ors. 2016 (228) DLT 316 that an Order XXXVII CPC suit is not
maintainable on the basis of a verbal/oral guarantee.
8. Admittedly, in the present case, there is no written
document of guarantee which is executed by the appellant/defendant
no.2. Accordingly as against the appellant/defendant no.2 the suit
clearly was not maintainable under Order XXXVII CPC, and
therefore, both the impugned judgments have to be set aside and as
against the appellant/defendant no.2 the suit will be tried as an
ordinary suit for recovery of moneys. The impugned judgments of the
courts below dated 6.11.2013 and 9.1.2017 are set aside and it is
directed that the suit as against the appellant/defendant no.2 will be
treated as an ordinary suit and will be proceeded in accordance with
law.
9. Let the parties appear before the District and Sessions
Judge, Central, Tis Hazari Courts, Delhi on 1.12.2017 and the District
and Sessions Judge will now mark the suit for disposal to a competent
court in accordance with law and the observations made in the present
judgment.
10. Appeal is accordingly allowed and disposed of in terms
of aforesaid observations, leaving the parties to bear their own costs.
NOVEMBER 07, 2017 VALMIKI J. MEHTA, J
Ne/ib
