Mena Vrajesh Dhanak vs Naynaben Dineshbhai Doshi
2021 Latest Caselaw 1342 Guj

     C/CRA/476/2018                                          CAV ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CIVIL REVISION APPLICATION NO. 476 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MENA VRAJESH DHANAK Versus NAYNABEN DINESHBHAI DOSHI ========================================================== Appearance:

MR. HEMAL SHAH(6960) for the Applicant(s) No. 1 SHASHVATA U SHUKLA(8069) for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 29/01/2021 CAV ORDER

1. This is a Civil Revision Application filed by the

original defendant u/S.115 of the Code of Civil

Procedure, 1908 ('Code' for short).

C/CRA/476/2018 CAV ORDER

2. The applicant who was the original defendant

is aggrieved by the order dated 6.7.2018

passed by the learned Judge, Small Causes at

Rajkot in Summary Suit No.472/2017 below

Exh.13.

3. The facts in brief are as under:

* The respondent was the original plaintiff

who moved the Small Causes Court by

preferring Summary Suit No.472/2017

under Order 37 of the Code. The case of

the plaintiff respondent herein was that

he had entered into an oral agreement

with the defendant / applicant herein by

which an amount of Rs.7,00,000/- was

advanced to the applicant - defendant for

a period of 3-4 months. A cheque bearing

No.198516 dated 22.12.2015 was issued

by the respondent - defendant in favour of

the applicant, which the applicant failed

C/CRA/476/2018 CAV ORDER

to repay and therefore a summary suit

was filed by the respondent to recover a

sum of Rs.7,00,000/- from the applicant.

* The applicant filed application Exh.13

before the trial Court. The applicant -

original defendant by filing application

under Order 7 Rule 11 contended that

Order 37 is a special provision and a

summary suit is not maintainable. The

application under O-7.R-11 that a

summary suit under O-37.R-1(2)(b) was

only maintainable on a written contract.

The plaint admittedly said that it was an

oral contract and, a summary suit was

therefore not maintainable. The learned

trial Judge by the impugned order dated

6.7.2018 rejected the application under

O.7-R.11 on the ground that the suit was

maintainable and held that the application

of the applicant under O.7-R.11 did not

fall within the clauses of O.7-R.11 (a) to

C/CRA/476/2018 CAV ORDER

(d). Aggrieved by this, the present revision

has been filed.

4. Mr. Hemal Shah, learned advocate for the

applicant would submit as under:

* He would submit on drawing the

attention of the Court to the plaint that

admittedly the suit was on oral contract

and not a written one and, therefore, a

summary suit was clearly not

maintainable and, therefore, the

application of the applicant under O-7.R-

11 ought to have been entertained and the

suit ought to have been dismissed.

* In support of his submission, Shri

Shah had, at the time of admission, relied

on a decision of the Bombay High Court in

the case of Ms.Purnima Jaitely v. Ravi

Bansi Jaisingh reported in AIR 2003

(Bombay) 494. He would reiterate, in

C/CRA/476/2018 CAV ORDER

support of his submission, that the Full

Bench decision of the Bombay High Court

in AIR 2003 (Bombay) 494 admittedly, a

summary suit was not maintainable under

Order 37. He would submit that a

summary suit would lie on a settled

account, on an acknowledgment of

liability and on honored Cheque. He would

therefore submit that admittedly when

there was an oral contract, no summary

suit would lie. In support of his

submission, Mr. Shah also relied on the

following decisions:

                 (a)    Sushil              Kumar           Gauba              v.
                        Adarsh                   Kumar                Gupta
                        reported                 in         Laws(P&H)
                        2014(9), 101.


                 (b)    Commissioner of Income Tax
                        v.           Deejay                 Hatcheries
                        reported in 1994 (Law Suit)
                        Bombay, 859.







 C/CRA/476/2018                                           CAV ORDER

(c) Bhargavi Constructions and another v. Kothakaput Muthyam Reddy and Others of Hon'ble Supreme Court dated 7.9.2017 in Civil Appeal No.11345 of 2017.

(d) Shamna B. V. The Manager, Hemambik Sanskrit High School reported in 2008 (Law Suit), Kerala, 330.

(e) Paresh P. Patel v. Atul J.

Desai in SCA No.7838/2012 dated 8.1.2013 of the Gujarat High Court.

Mr. Shah would therefore submit that the trial

Court failed to consider that O.37-R.1(2)(b)(i)

provides that a suit for recovery of an amount

would be maintainable only when it arises out

of a written contract and in the present case,

the suit was out of an oral contract. He would

further submit that the trial Court failed to

consider that suit upon a Cheque means a suit

C/CRA/476/2018 CAV ORDER

to recover money due on a Cheque which is

dishonored. Such was not the case on hand

and, therefore the suit was not maintainable.

5. Mr. Shashvat Shukla, learned counsel

appearing for the respondent - original plaintiff

would submit that the order rejecting the

application under O.7-R.11 of the Code was

just and proper. He submitted that the power

of the Court to reject a plaint under O.7-R.11 is

a drastic power conferred upon the Court to

terminate a civil action at the threshold.

Reliance was placed on the decision in the case

of P.V. Guru Raj Reddy v. P.Neeradha

Reddy and others reported in 2015(8) SCC

331.

* Mr.Shukla would submit that the plaint

can be rejected only if it falls within the

defined clauses contained in sub clauses

(a) to (f) of Rule 11 of Order VII of the

CPC. Perusal of the application Exh.13

C/CRA/476/2018 CAV ORDER

filed by the applicant indicated that none

of the requirements for the rejection of

the plaint were pleaded, much-less

satisfied.

* Mr.Dave would further submit that the

application Exh.13 for rejection of the

plaint proceeded on an erroneous premise

that a suit upon a Cheque which is a Bill

of Exchange is not liable to be tried as a

summary suit. He would submit that

Order XXXVII does not impose any bar

upon institution of a suit to take away

jurisdiction of the Court. He would submit

that merely because a suit may not fall to

be tried in a summary manner, it would

not mean rejection of the plaint outright.

In support of his submission, he relied on

the decisions in the case of

Aravindakshan v. Sukumaran reported

in Laws(Ker) 1999 (12), 99 of Kerala

C/CRA/476/2018 CAV ORDER

High Court and V.K. Enterprises and

another v. Shiva Steels reported in

2010(9) SCC 256 of Hon'ble Supreme

Court.

* Mr. Shukla would then submit that unless

the leave to defend is granted, the

application under Exh.13 would itself not

be maintainable. He would next submit

that the suit under Order 37 against the

Cheque was maintainable and according

to him, this case was squarely covered by

the decision of this Court rendered in Civil

Revision Application No.363 of 2017 dated

26.9.2017. Shri Shukla has annexed a

copy of the judgment at page 25 with the

affidavit-in-reply.

6. Having perused the order under challenge and

the provisions of O.37-R.1(2) and the provisions

of O.7-R.11 of the Code, the following reasons

C/CRA/476/2018 CAV ORDER

indicate that the Court agrees with the

submission of Shri Shukla.

* O.7-R.11 as held by the Supreme

Court in the case of P.V. Guru Raj

Reddy (Supra) is a drastic measure and

would be applicable only when there is no

cause of action that arises. The conditions

precedent for the exercise of power under

O.7-R.11 have to be considered only if the

averments read in the plaint as a whole do

not disclose a cause of action and when

the suit is barred. In other words, when

reading the plaint it comes forth that

where the suit is under valued or where

there is an absence of cause of action or

when the statement in the plaint indicates

that the suit is barred or the plaint is not

filed in duplicate, that resort can be

sorted under O.7-R.11 of the Code.

7. Perusal of the facts on hand would indicate

C/CRA/476/2018 CAV ORDER

that it is the case of the respondent - original

plaintiff that he is entitled to recover a sum of

Rs.7,00,000/- which he advanced to the

applicant - original defendant on an oral

contract. According to the applicant, the suit is

not maintainable because if it is an oral

contract, the procedure under Order 37 of the

Code cannot be followed. At best therefore, the

case of the applicant was that the suit

instituted by the respondent - original plaintiff

was a suit which should not be tried as a

summary suit. In essence therefore the

grievance of the applicant - defendant in an

application under Exh.13 was that the suit

could not be tried in a summary nature but it

could have been tried as a long cause suit.

Reading the application under O.7-R.11 would

indicate that the case of the defendant was that

the recovery of money on the basis of Cheque

was according to the applicant by way of an

oral contract, so at best, as held by the Kerala

C/CRA/476/2018 CAV ORDER

High Court in the case of Aravindakshan

(Supra), there was no bar to the filing of the

suit. The dispute was as to whether it was tried

as a summary suit or which could be tried as an

ordinary suit. Such an issue can only be

adjudicated after an application for leave to

defend was filed. It would be worthwhile to

reproduce para 22 of Aravindakshan (Supra)

which reads as under:

"22. The rejection of the plaint by the

Munsiff under O. VII R.11(d) of CPC is.

n our opinion, wholly without

jurisdiction. As held by the apex Court,

the grounds must be such as to fall

within the categories specified in order

VII R.11. 0. VH R.11(d) applies only

where the suit appears from the

statement in the plaint to be barred by

any law. There is no bar to the filing of

the suit. The dispute is as to whether it

shook! be tried as summary suit or

ordinary suit, which can as well be

C/CRA/476/2018 CAV ORDER

adjudicated later A la-issuing

summons. The rejection of the plaint

without even numbering is totally

illegal. The learned Munsiff, in the

facts and circumstances of this case,

acted illegally and with material

irregularity in not numbering the plaint

and issuing summons under O.XXXVII

and in rejecting the plaint under O. VII

R.11(d) of the Code of Civil Procedure.

If fee order of the learned Munsiff is

allowed to stand, certainly it would

occasion failure of justice and denial of

benefits conferred on the people of this

country by the Parliamentary

legislation. The learned Munsiff had a

statutory duty to number the plaint and

issue summons under O. XXXVII Rr. 2

and 3 of the Code of Civil Procedure if

the plaint is otherwise in order."

8. Worthwhile also it will be to consider the

decision of this Court in CRA No.363/2017

where the Court after considering the Full

C/CRA/476/2018 CAV ORDER

Bench decision of the Bombay High Court

observed and held that a suit filed for recovery

of amount on the basis of a Cheque under

summary procedure is maintainable. The oral

order of this Court dated 26.9.2017 reads as

under:

"1.The Civil Revision Application has been

filed by the applicants - defendants under

section 115 of the Civil Procedure Code

challenging the order dated 10.07.2017

passed by the Principal Senior Civil Judge,

Rajkot (hereinafter referred to as 'the Trial

Court ') below Exh.11 in Summary Suit No.1

of 2017, whereby the Trial Court has

dismissed the application of the applicants

seeking rejection of the plaint under Order

VII Rule 11 of the Civil Procedure Code.

2.It is sought to be submitted by learned

Advocate Mr.Pratik Jasani for the applicants

that the cheque was drawn by the

respondentplaintiff in favour of the husband

of applicant No.1, who has already expired

and therefore, the suit against present

C/CRA/476/2018 CAV ORDER

applicants - defendants under Order

XXXVII would not be maintainable. In

support of his submission, he has relied

upon the decision of the Supreme Court

in the case of Ms. Purnima Jaitly Vs.

Ravi Bansi Jaisingh reported in AIR

2003 Bombay 494.

3.The Court does not find any substance in

the submission of learned Advocate

Mr.Jasani. The respondent - plaintiff having

filed the summary suit under Order XXXVII

of the Civil Procedure Code against the

present applicants - defendants for the

recovery of amount, which has been paid by

the respondent - plaintiff to the deceased

Devenbhai Desai, who happened to be the

husband of the applicant No.1, father of the

applicant No.2 and son of applicant No.3 by

drawing the cheque in his favour. After the

death of the said Devenbhai Madhubhai

Desai, the suit has been filed against the

present applicants being the legal heirs. The

suit is filed for recovery of amount on the

C/CRA/476/2018 CAV ORDER

basis of cheque, which is a bill of exchange,

the suit as such could not be said to be not

maintainable under Order XXXVII of the

Civil Procedure Code.

4.In that view of the matter, the Court does

not find any substance in the Civil Revision

Application and hence, present Civil

Revision Application is dismissed."

9. Perusal of the decisions relied upon by

Mr.Hemal Shah, learned counsel of the

applicant especially in the case of the Gujarat

High Court in Special Civil Application No.7838

of 2012 and other decisions is that what was

under challenge in those proceedings, was the

issue whether the suit at all could have been

tried as a summary procedure. What the

learned counsel for the applicant therefore

misses to suggest is that it cannot be a case

where powers under O.7-R.11 could have been

invoked to assail the procedure of trial of the

C/CRA/476/2018 CAV ORDER

suit that was an issue or a dispute that could

be decided subsequent to the leave to defend

application filed by him. What was disputed by

him was the jurisdiction of the summary

procedure and it would not fall within the

parameters of the objections envisaged under

O.7-R.11 of the Code.

10. For the aforesaid reasons, I do not find any

reason to interfere with the order passed by

the Trial Court in rejecting the application of

the applicant under O.7-R.11 of the Code. The

revision application therefore stands dismissed.

Ad-interim relief granted earlier stands vacated

forthwith. No order as to costs. Notice is

discharged.

Sd/-

[ BIREN VAISHNAV, J.] *** VATSAL