Delhi High Court
Amit Agarwal vs Religare Securities Ltd. on 6 March, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.980/2017 and C.M. No.42738/2017 (stay)
% 6th March, 2018
AMIT AGARWAL ..... Appellant
Through: Mr. Pinaki Addy, Advocate.
versus
RELIGARE SECURITIES LTD. ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. When notice was issued in this RFA on 24.11.2017 the
following order was passed:-
"C.M. Appl. Nos. 42739-40/2017 (for exemptions)
Exemptions allowed, subject to all just exceptions.
C.Ms. stand disposed of.
RFA No. 980/2017 and C.M. Appl. No. 42738/2017 (for stay)
1. Learned counsel for the appellant places reliance upon a judgment
delivered by this Court in the case of IFCI Factors Limited Vs. Maven
Industries Limited and Ors., 2015 (255) DLT 32, to argue that the subject
suit filed by the respondent/plaintiff could not have been instituted under
Order 37 CPC, inasmuch as, the amount claimed in the suit is the amount
claimed as a balance at the foot of an account and not an amount which is
a debt or a liquidated specified amount as stated in a written instrument or
a dishonoured cheque, etc. It is argued that once the suit itself was not
maintainable under Order 37 CPC there did not arise an issue of the
procedure under Order 37 CPC being applied of seeking leave to defend
and refusing the grant of leave to defend.
2. In view of the arguments urged on behalf of the appellant, till
further orders unless varied by the Court there shall be stay of operation of
the impugned order dated 27.9.2017 passed by the Court of Dr. Neera
Bharihoke, ADJ-01, Saket Courts, New Delhi, in CS No. 6188/16 titled as
M/s Religare Securities Limited Vs. Amit Aggarwal.
3. Notices be issued to the respondent on filing of process fee, both in
the ordinary method as well as by registered AD post, returnable on 6th
March, 2018. Dasti.
4. Trial court record be requisitioned."
2. In the morning this matter has already been passed over
twice for awaiting the counsel for the respondent. Even on the third
call, counsel for the respondent is not present and only the officer of
the respondent is present who had sought the pass-over. In view of the
order passed on 24.11.2017 in my opinion there is no need for
adjourning of this appeal which can be disposed of.
3. By the impugned judgment the suit has been decreed
because the application for condonation of delay for entering
appearance under Order XXXVII CPC of the appellant/defendant was
dismissed on 11.9.2017. The Order XXXVII CPC suit has been
decreed for Rs.49,42,248.58/-.
4. A reading of the plaint shows that though the suit is filed
under Order XXXVII CPC, however there is no averment in the plaint
as to which is the negotiable instrument or a written agreement
containing the liquidated amount claimed in the suit, and on the basis
of which the suit plaint is filed. Suit is filed on the basis of the
balance due at the foot of the running account and this becomes clear
from paras 8 to 12 and 16 to 18 of the plaint and which paras read as
under:-
"8. In terms of the said Agreement, the plaintiff maintained a running
account of the Defendant for all the trade done/dealings entered into by the
Defendant from time to time on the Stock Exchange. The Defendant
replenished the Margin Account as and when it fell deficient and paid the
various amounts from time to time.
9. That as per statutory guidelines, for every transaction the Plaintiff
issues a contract note to its client, such as the Defendant, which contains
the details of the said transaction, such as quantity sold, name of scrip,
rate, etc. Apart from the above, the Plaintiff sent quarterly statement of
account to the Defendant. Thus, the Defendant through such Contract
notes was additionally aware of the transactions carried by him at all times
and he never disputed the outstanding amount in his trading account on
account of such transactions. The Plaintiff submits that there is a clear
acceptance of the trading done and the liability accruing there from on the
part of the Defendant.
10. That despite being in full knowledge of his negative running
account, as is clear from the account statement as on 04.05.2009 and
contract notes, the Defendant failed to clear the outstanding due and
payable by the Defendant to the Plaintiff company.
11. That due to the trading done by the Defendant, his running account
showed a negative balance of Rs.49,42,248.58 (Rupees Forty None Lacs
Forty Two Thousand Two Hundred Forty Eight and Paise Fifty Eight
only). The said amount is due and payable by the Defendant to the
Plaintiff as on 04.05.2009.
12. That the Plaintiff made repeated demands to the Defendant to pay
the outstanding amount due and payable by the Defendant to the Plaintiff.
But to no avail.
xxxxx xxxxx xxxxx
16. The Defendant is liable to pay Rs.49,42,248.58 (Rupees Forty
Nine Lacs Forty Two Thousand Two Hundred Forty Eight and Paise Fifty
Eight only) as on 04.05.2009 being the outstanding amount due and
payable by the Defendant to the Plaintiff.
17. That the Plaintiff is entitled to interest @ 24% p.a. on the above
outstanding amount of Rs.49,42,248.58 (Rupees Forty Nine Lacs Forty
Two Thousand Two Hundred Forty Eight and Paise Fifty Eight only)
w.e.f. 05.05.2009 till payment of the said amount by the Defendant to the
Plaintiff.
18. That the Plaintiff has filed the present suit under the provisions of
order XXXVII CPC. The amount claimed is an outstanding and liquidated
amount based on the trade done by the defendant according to the
provisions of said terms and conditions of the said Agreements which
govern the relationship the Plaintiff and the Defendant."
5. A reading of the plaint therefore makes it clear that suit is
filed for recovery of an amount which is the balance due at the foot of
the running account and the suit amount does not arise from any
negotiable instrument or the suit amount is not a liquidated amount
arising from a written contract acknowledging the liability of the suit
amount to the plaintiff.
6. Once the suit was not maintainable as under Order
XXXVII CPC, there did not arise any issue of filing of appearance
within 10 days from service, and therefore the impugned judgment
could not have decreed the suit treating the suit as an Order XXXVII
CPC suit on account of non-filing of the appearance. Impugned
judgment dated 27.9.2017 is set aside and it is directed that suit will be
tried as an ordinary recovery of money suit.
7. List before the District & Sessions Judge, South-East,
Saket Courts, New Delhi on 10th April, 2018 and the District &
Sessions Judge will now mark the suit for disposal to a competent
court in accordance with law.
8. Appeal is accordingly allowed and disposed of in terms
of aforesaid observations.
MARCH 06, 2018 VALMIKI J. MEHTA, J
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