Delhi High Court
Sanjeev Sharma vs Avinash Rastogi on 31 January, 2018
$~OS-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31.01.2018
+ CS(COMM) 1205/2016 and IA No. 11676/2017
SANJEEV SHARMA ..... Plaintiff
Through Mr.Manish Dua and Mr.Deepak
Sahni, Advs.
versus
AVINASH RASTOGI ..... Defendant
Through Ms.Mrinmoi Chatterjee and Mr.Varun
Mishra, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1.
This suit has been filed under Order 37 CPC against the defendant for
recovery of Rs.3,30,00,000/- based on an agreement/letter dated 06.07.2013
and dishonoured post dated cheques.
2. It is the contention of the plaintiff as stated in the plaint that a
company, namely, Baxter India (P) Ltd. (BIPL) approached it to offer
distributorship for the sale of Haemodialysis Machines and Haemodialysis
Consumables in North India. The defendant is said to have placed various
purchase orders for a total sum of Rs.5,74,31,168/- in the year 2012-13.
After adjusting payment received, it is stated that the defendant was liable to
pay a sum of Rs.3,30,00,000/-. The defendant is said to have acknowledged
this liability by a written agreement/letter dated 06.07.2013. The defendant
also issued four post dated cheques for Rs.82,50,000/- each and assured
encashment on presentation. As security, the defendant has also kept the
original title document of the property at Cycle Market, Jhandenwalan
Extension, New Delhi-110055 in a locker in the Bank of Maharashtra under
joint operation of the plaintiff and the defendant. It is pleaded that the
cheques of the defendant when presented were dishonoured and no payment
has been received.
3. The defendant filed his application for leave to defend. On 17.07.2017
this court granted conditional leave to defend to the defendant on depositing
Rs.1,43,00,000/- with the Registrar General of this court within four weeks
from the said date.
4. Against the above order dated 17.07.2017, the defendant went up in
appeal before the Division Bench. The Division Bench in
FAO(OS)(COMM) 176/2017 on 20.09.2017 dismissed the appeal.
5. When the matter came before this court on 29.11.2017, on the request
of the learned counsel for the defendant, it was adjourned to 21.12.2017.
This court had made it clear, in case order dated 17.07.2017 is not complied
with, adverse consequences would follow. On 21.12.2017 as no payment had
been deposited as directed by this court vide its order dated 17.07.2017, the
right of the defendant to file written statement was closed.
6. Today also, the defendant pleads inability to deposit the amount.
Learned counsel for the defendant however states that the plaintiff would
have lead evidence to prove their case.
7. Learned counsel for the plaintiff relies upon a judgment of the
Division Bench of this court in Agarwal Developers Pvt Ltd Vs. M/S Icon
Buildcon Pvt Ltd., 2013 (V) ILR (Delhi), 3648. It is pleaded that a similar
plea was rejected and a decree was passed in the said case.
8. Order 37 Rule (3) (6) (b) CPC provides as follows:-
"(3) Procedure for appearance of defendant
(1) to (5) xxx
(6) At the hearing of such summons for judgement,-
(a) xxx
(b) if the defendant is permitted to defend as to the whole or
any part of the claim, the Court or Judge may direct him to
give such security and within such time as may be fixed by
the Court or Judge and that, on failure to give such security
within the time specified by the Court or Judge or to carry
out such other directions as may have been given by the
Court or Judge, the plaintiff shall be entitled to judgement
forthwith."
9. Hence, in view of the above provision, in case of failure of the
defendant to provide security as directed, the plaintiff is entitled to judgment
forthwith. The Division Bench in Agarwal Developers Pvt Ltd Vs. M/S Icon
Buildcon Pvt Ltd. (supra) had also rejected a similar contention and noted as
follows:-
"7. The sole submission made before us by the learned counsel
for the Appellant is that the interpretation given by the learned
Single Judge regarding Order XXXVII Rule (3)(6)(b) CPC is
contrary to the law and consequently the impugned order is
liable to be set aside. It is submitted that even in an ex parte
case the Court is under an obligation to look into the merits of
the case and then give an ex parte judgment. It is further
contended that similarly in a case of bonafide requirement under
the provisions of Delhi Rent Control Act, even if leave to
defend is declined the Court is under an obligation to ascertain
the bonafide requirement of the landlord on merits and then to
pass an eviction order or dismiss the eviction petition.
8. We find the aforesaid contention of the Appellants counsel to
be wholly misconceived. The provisions of Order XXXVII Rule
3(6)(b) envisage that on the failure of the Appellant to deposit
the amount required to be deposited by it as a condition to the
grant of leave to defend the suit, the Court has no other option
but to pass a judgment forthwith. This is the clear mandate of
law and we, therefore, find no merit in the contention of the
Appellant that the interpretation given to Order XXXVII Rule
3(6)(b) is contrary to the law. Further, in our opinion, an order
passed in a summary suit under the provisions of Order
XXXVII Rule 2 CPC cannot be equated to an ex parte order
passed in an ordinary suit. As regards compliance with the
provisions of Order XXXVII Rule 2, we find that the said
aspect has been addressed by the learned Single Judge at length
in his order dated April 20, 2012 and only after considering the
same, the prayer of the Appellant for grant of unconditional
leave to defend the suit was not acceded to by the learned
Single Judge. An appeal filed from the order of the learned
Single Judge was dismissed by the Division Bench, albeit the
Division Bench was persuaded to reduce the rigors of the order
by directing deposit of 25% of the principal amount as against
50% of the principal amount in terms of the order of the learned
Single Judge. The Special Leave Petition filed by the Appellant
against the order of the Division Bench of this Court was also
dismissed during the pendency of the present Appeal."
10. As only conditional leave to defend was granted to the defendant and
the defendant has failed to comply with the directions, in terms of the Order
37 CPC a decree is to be passed. Accordingly, a decree is passed in favour of
the plaintiff and against the defendant for Rs.3,30,00,000/-. The plaintiff
shall also be entitled to pendente lite simple interest @ 12% p.a. from the
date of filing of the suit till the date of the decree. In addition, the plaintiff
shall also be entitled to simple interest @ 12% p.a. from the date of decree
till recovery. The plaintiff shall also be entitled to costs.
11. The suit stands disposed of as above.
IA No. 11676/2017
In view of the above order, the application is dismissed.
JAYANT NATH, J
JANUARY 31, 2018
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