Punjab-Haryana High Court
Nitin Singhal vs Anil Garg on 21 November, 2022
S. No.112 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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CR No.5091 of 2022
Date of Decision:21.11.2022
Nitin Singhal .....Petitioner
Vs.
Anil Garg .....Respondent
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Kanwal Goyal, Advocate for the petitioner.
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DEEPAK GUPTA, J.
The suit for recovery under the provisions of Order 37 of the
Code of Civil Procedure was filed by the plaintiff (petitioner herein),
wherein application for leave to defend was moved by the defendant
(respondent herein) after 10 days of the service. The plaintiff moved
application under Section 151 CPC to decree the suit due to delayed moving
of the application by the defendant for leave to defend. That application
was dismissed by learned Civil Judge (Junior Division), Faridabad vide
impugned order dated 19.07.2022, which is assailed in this revision.
2. The facts, in brief, are that the plaintiff filed suit for recovery of
₹9,25,500/-/ (₹6 lakhs as principal amount and ₹3,25,500/- as interest)
against the defendant by pleading that friendly loan of ₹6 lacs was advanced
in cash in the year 2013-14 to the defendant, who had agreed to return the
same along with interest @ 21% per annum. Availing of the loan was
acknowledged by the defendant by way of receipt. It was pleaded further
that the defendant paid interest @₹10,500 per month upto November, 2015
but failed to make payment of interest w.e.f. December, 2015 onwards. The
principal amount of ₹6 lakhs and interest from December, 2015 to
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30.06.2018 for 31 months i.e. ₹3,25,500/- was outstanding. Plaintiff sent a
legal notice dated 21.11.2016 to the defendant but payment was not made.
With these submissions, suit for recovery of ₹9,25,500/- along with
pendente lite & future interest was filed on 7.7.2018 under Order 37 CPC.
3. Summons of the suit was issued to the defendant for
11.09.2018, which was served upon him on 12.07.2018. Defendant put in
appearance on 31.07.2018 i.e. beyond the period of 10 days after being
served with the summons, without moving any application for exonerating
the delay. Simultaneously, defendant moved an application for leave to
defend (copy Annexure P.5). Plaintiff, on the other hand, moved an
application on 31.10.2018 (copy Annexure P.6) for issuance of summons
for judgment. He also filed reply to the application of the defendant for
leave to defend. Plaintiff, thereafter, moved an application on 19.11.2018
under Section 151 CPC for decreeing the suit on the ground that the
defendant had not put in appearance within ten days after serving of the
summons upon him. Said application has been dismissed by way of the
impugned order.
4. The contention raised by the petitioner is that provision of
Order 37 Rule 2 (3) is mandatory and not directory. As the defendant failed
to put in appearance within ten days of receipt of summons and did not
move an application to condone the delay, so Court was bound to pass the
decree. It is also contended that necessary pre-requirements of Order 37
CPC were fulfilled by the plaintiff and so, the impugned order is bad in law
and also non-speaking.
5. After hearing learned counsel for the petitioner and perusing
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the paper book, I find no merit in the revision.
6. Order 37 of the Code of Civil Procedure provides for a
summary procedure in respect of certain suits. The essence of a summary
suit is that defendant is not entitled as a matter of right to defend the suit, as
in the ordinary suit. Defendant is required to apply for leave to defend
within ten days from the date of service of summons upon him and such
leave will be granted, only if the affidavit filed by the defendant discloses
such facts, as the Court may deem sufficient for granting leave to the
defendant to appear and defend the suit. If no leave is granted to the
defendant, the plaintiff is entitled to decree. The object underlying the
summary procedure is to prevent unreasonable obstruction by defendant
who has no defence.
7. However, before a decree can be granted in favour of the
plaintiff, it is required to be seen, whether the suit filed by the plaintiff falls
within the ambit of Order 37 Rule 1(2) CPC, which read as under:
"Subject to the provisions of sub-rule (1), the Order applies to
the following classes of suits, namely:--
(a) suits 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."
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8. A bare look at the above provision would reveal that summary
procedure is applicable in respect of following two classes of suit -
(i) suits based upon bills of exchange, hundies and promissory notes; and
(ii) suit for recovery of debts or liquidated demand in money, which is
payable by the defendant out of written contract or an enactment or a
guarantee given in respect of a debt or a liquidated demand.
9. In the present case, admittedly, there is no written contract
between the parties. As per own case of the plaintiff, friendly loan was
advanced to the defendant against a receipt. No terms and conditions
regarding payment of interest are stated to be mentioned in the receipt. The
receipt does not fall within the ambit of bill of exchange, hundi or
promissory notes; or written contract. There being no written contract
between the parties for alleged friendly loan transaction, as is clear from the
pleadings in the plaint and regarding the payment of interest @21% per
annum as claimed by the plaintiff, the receipt in itself cannot be treated as a
written contract between the parties. The rate of interest has been claimed
on the basis of oral agreement. The said suit for recovery of debt or
liquidated payment of money with interest cannot be termed as arising out
of a written contract. Merely because the defendant has paid interest
@21% per annum for some months as is claimed by the plaintiff, does not
make it out to be a case of suit arising out of a written contract.
10. Still further, even if it be assumed for the sake of arguments
that suit falls within the ambit of Order 37 CPC, plaintiff was required to
send the summons of the suit to the defendant in Form B in Appendix B as
per Rule 2(2) of order 37. Rule 2 of the Order XXXVII CPC provides as to
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how the summary suit is to be instituted by the plaintiff. It reads as under :-
"2. Institution of summary suits-- (1) A suit, to which this Order
applies, may if the plaintiff desires to proceed hereunder, be instituted
by presenting a plaint which shall contain,--
(a) a specific averment to the effect that the suit is filed under
this Order;
(b) that no relief, which does not fall within the ambit of this
rule, has been claimed in the plaint;
(c) the following inscription, immediately below the number of
the suit in the title of the suit, namely:--
"(Under Order XXXVII of the Code of Civil Procedure,
1907)."
(2) the summons of the suit shall be in Form No. 4 in Appendix B
or in such other form as may, from time to time, be prescribed.
(3) xxxxxxxxxxxxxxxxxxxx."
11. It is evident from the aforesaid Rule that whenever the suit is
filed under Order XXXVII of CPC, the summons of the suit is to be sent in
Form No.4 of Appendix B, which is as under :-
"Appendix B
No.4
SUMMONS IN A SUMMARY SUIT
[O.37 R. 2]
(Title)
To
(Name, description and place of residence)
Whereas....... has instituted a suit against you under
Order XXXVII of the Code of Civil Procedure, 1908, for Rs.............
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and interest, you are hereby summoned to cause an appearance to be
entered for you, within ten days from the service hereof, in default
whereof the plaintiff will be entitled, after the expiration of the said
period of ten days, to obtain a decree for any sum not exceeding the
sum of Rs........... and the sum of Rs.......... for costs, together with
such interest, if any, as the Court may order.
If you cause an appearance to be entered for you...........
the plaintiff will thereafter serve upon you a summons for judgment at
the hearing of which you will be entitled to move the Court for leave
to defend the suit.
Leave to defend may be obtained if you satisfy the Court
by affidavit or otherwise that there is a defence to the suit on the
merits or that it is reasonable that you should be allowed to defend.
Given under my hand and the seal of the Court, this.......
day of........20..
Judge."
12. In the present case, the summons to the defendant regarding the
suit for 11.09.2018 was issued not in Form N: 4 as per Appendix B
provided under Order 37 Rule 2 CPC, as is evident from the copy of notice
(Annexure P.3). Ironically, this summons was not even sent under Order 5
Rule 1 or 3 CPC as is in the ordinary suit. Rather, said notice was sent
under Order 9 Rule 6 CPC, which in fact provides about the procedure when
only plaintiff appears. Simply because a note has been given below this
notice sent under Order 9 Rule 6 CPC to the effect that the suit has been
filed under Order 37 CPC, does not fulfill the requirements of Order 37
Rule CPC.
13. Not only above, Rule 3 of Order XXXVII CPC provides the
procedure to be followed for appearance of the defendant. The relevant
portion of said Rule 3 reads as under :-
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"3. Procedure for the appearance of defendant-- (1) In a suit to
which this Order applies, the plaintiff shall, together with the
summons under rule 2, serve on the defendant a copy of the plaint and
annexures thereto and the defendant may, at any time within ten days
of such service, enter an appearance either in person or by pleader
and, in either case, he shall file in Court an address for service of
notices on him.
(2) Unless otherwise ordered, all summonses, notices and other
judicial processes, required to be served on the defendant, shall
deemed to have been duly served on him if they are left at the address
given by him for such service.
(3) On the day of entering the appearance, notice of such appearance
shall be given by the defendant to the plaintiff's pleader, or, if the
plaintiff sues in person, to the plaintiff himself, either by notice
delivered at or sent by pre-paid letter directed to the address of the
plaintiff's pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall
thereafter serve on the defendant a summons for judgment in
Form No. 4A in Appendix B or such other Form as may be
prescribed from time to time, returnable not less than ten days from
the date of service supported by an affidavit verifying the cause of
action and the amount claimed and stating that in his belief there is no
defence to the suit.
(5) The defendant may, at any time within ten days from service of
such summons for judgment, by affidavit or otherwise disclosing such
facts as may be deemed sufficient to entitle him to defend, apply on
such summons for leave to defend such suit, and leave to defend may
be granted to him unconditionally or upon such terms as may appear
to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the
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Court is satisfied that the facts disclosed by the defendant do not
indicate that he has a substantial defence to raise or that the defence
intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by
the the plaintiff is admitted by the defendant to be due from him, leave to
defend the suit shall not be granted unless the amount so admitted to
be due is deposited by the defendant in Court.
(6) xxxxxxxxxxxxxxx
(7)xxxxxxxxxxxxxxx"
14. It is apparent from the above said Rule that on appearance of
the defendant within ten days of service, he is required to file an address in
the Court for service of notice upon him and it is thereafter that plaintiff is
required to serve upon him (defendant) a summons for judgment in form
No.4-A in Appendix B, which should be returnable not less than ten days
from the date of service. Form No.4-A in Appendix-B reads as under :-
No.4 -A
SUMMONS FOR JUDGMENT IN A SUMMARY SUIT
[O.37 R. 3]
(Title)
In the........ Court at .......Suit No...........of 20.......
XYZ................. Plaintiff
Versus
ABC...................Defendant
Upon reading the affidavit of the plaintiff the Court makes the
following order, namely:---
Let all parties concerned attend the Court or Judge, as the case
may be, on the day........of.....20..., at............o'clock in the forenoon
on the hearing of the application of the plaintiff that he be at liberty to
obtain judgment in this suit against the defendant (or if against one or
some or several, insert names) for Rs.......... and for interest and
costs.
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Dated the..........day of... ..20...."
15. In this case, though plaintiff moved an application on
30.10.2018 (Annexure P6) for issuing summons for judgment, but
defendant was not served with the summons in Form No.4-A in Appendix
B.
16. It has been held by this court in Nand Kumar Vs. Sheela Devi,
1997(1) RCR (Civil) 113 that provision of Order XXXVII CPC provides a
summary procedure for disposal of case and therefore, under its Rule 3, the
plaintiff is duly bound to send a copy of plaint and annexure thereof to the
defendant under Rule 2. A summons is to be sent in Form No.4 of Appendix
B. Without copy of pronote, it cannot be said that provision of Order
XXXVII Rule 3 CPC was complied with.
17. In the present case, as evident from notice (Annexure P3),
defendant was never served with summons in Form No.4 of Appendix B of
CPC; and after putting in appearance, he was not served with summons in
Form No.4-A of Appendix B alongwith the copy of receipt, which was the
basis of the plaintiff's case.
18. The impugned order dated 19.07.2022, Annexure P.1 reveals
that aforesaid contentions were raised by the defendant before the Court
below. The learned Court, by keeping in view the contentions of the
defendant but without commenting on the merits of the case, dismissed the
application for decreeing the suit. The contention of the petitioner that a
non-speaking order has been passed, is without merit because learned Court
has clearly given its mind that application was dismissed having regard to
the specific contentions made by the defendant.
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19. In view of the above, it is held that there is no merit in the
present revision.
20. Dismissed.
November 21, 2022 ( DEEPAK GUPTA )
renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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