Delhi High Court
Satya Prakash & Bros (P) Ltd. & Anr vs Qutab Realcon Pvt. Ltd. & Ors. on 30 September, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 51/2019
SATYA PRAKASH & BROS (P) LTD. & ANR ...... Plaintiffs
Through: Mr. Anil K. Airi, Sr. Adv. with Mr.
Shailendra Babbar, Ms. Manisha
Parmar, Ms. Siddhi Mittal, Mr. Kapil
Chaudhary, Ms. Sukanya Lal & Mr.
Mudit, Advs.
Versus
QUTAB REALCON PVT. LTD. & ORS. ..... Defendants
Through: Mr. Rajiv Bajaj, Adv. for D-1,2,4&5.
Mr. Deepak Vohra, Adv. for D-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 30.09.2019
IA No.8886/2019 (of defendant no.3) & IA No.9150/2019 (of defendants
No.1,2,4&5) [both for leave to defend]
1. The counsel for defendants no.1,2,4&5 has been heard.
2. This suit under Order XXXVII has been filed on the basis of a Receipt
/ Settlement of Deal claimed to be executed by the defendant no.2 Piyoosh
Goel and on the basis of dishonoured cheques, all issued by defendant no.1
Qutab Realcon Pvt. Ltd.
3. It is the claim of the plaintiffs that the Receipt / Settlement of Deal
document has been signed by defendant no.2 Piyoosh Goel on behalf of
defendant no.1 Qutab Realcon Pvt. Ltd., though the document does not say so.
4. Besides defendant no.1 Qutab Realcon Pvt. Ltd. and defendant no.2
Piyoosh Goel, Abhishek Saraf, Hanuman Singh and Ravi Kumar claimed to
be the Directors of defendant no.1 Qutab Realcon Pvt. Ltd. have also been
impleaded as defendants no.3 to 5.
5. I have straightaway enquired from the senior counsel for the plaintiffs,
how the suit against other than those privy to the documents i.e.
Receipt/Settlement of Deal and cheque(s), has been instituted under Order
XXXVII of the CPC. Even if the defendants no.3 to 5, as Directors of
defendant no.1 company, have signed any of the cheques, the same would
not make them personally liable for the amount of the cheque.
6. A suit under Order XXXVII of the CPC is maintainable only if a
claim within the ambit of Order XXXVII is made thereunder.
7. The plaintiffs having claimed reliefs in the suit against persons other
than those privy to documents on the basis of which suit under Order
XXXVII of the CPC has been filed, notwithstanding the suit having been
entertained without noticing the said aspect by the learned Joint Registrar,
the suit cannot be permitted to be treated as under Order XXXVII of the
CPC.
8. The contention of the senior counsel for the plaintiffs at this stage that
the plaintiffs are willing to drop defendants no.3 to 5 is of no avail.
9. The maintainability of the suit under Order XXXVII of the CPC has to
be decided at the threshold. In fact, Order XXXVII Rule 2(b) requires the
plaintiffs to expressly state that no relief, other than that falling within the
ambit of Order XXXVII of the CPC, has been claimed.
10. The senior counsel for the plaintiffs has argued that only a plea to the
said effect is to be made.
11. The fact that a plea is required to be made, shows that the plaintiffs
cannot make a claim besides that within the ambit of Order XXXVII of the
CPC and the moment the plaintiffs make such a claim, the plaintiffs ought to
have been ousted on the very first day from proceeding under Order
XXXVII of the CPC and the mere fact that the learned Joint Registrar
entertained the suit will not come in the way of this Court now correcting the
mistake.
12. The suit having been found to be not maintainable under Order
XXXVII of the CPC, these applications are infructuous.
13. The applications are disposed of as infructuous.
CS(OS) No.51/2019
14. Written statements be filed within 30 days from today.
15. Replication within further 30 days thereafter.
16. Affidavits of admission/denial of each others' documents be filed
along with the written statement and the replication.
17. List for framing of issues if any on 28th April, 2020.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 30, 2019
'gsr'
