Final Order 5

Order Details: COPY OF JUDGMENT
Pdf Text: Suit No 769/23 Pg 1 of 5
IN THE COURT OF AYUSH SHARMA: CIVIL JUDGE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Date of Institution of Suit: October 3rd, 2023
Reserved on: August 17th, 2024
Pronounced on: August 17th, 2024
SUIT NO: 769/23
IN THE MATTER OF: -
SH. DHARMENDER SACHDEVA
PROPRIETOR OF K-STORE, HAVING
OFFICE AT 761/5, MAIN ROAD KRISHNA
NAGAR, JHEEL CHOWK,
NEAR GURUDWARA, DELHI-110061 ...PLAINTIFF
Through: Sh. Lokesh Verma,
Advocate.
VERSUS
SH. SAURABH TYAGI,
PROPRIETOR OF OWN FITNESS
SUPPLEMENT NUTRITION,
AT: NIWARI ROAD, NEAR RAJ CHOPLA,
MODINAGAR, GHAZIABAD,
UTTAR PRADESH-201204 ….DEFENDANT
Through: None
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF RS.
1,00,000/- ALONGWITH INTEREST
JUDGMENT UNDER ORDER XXXVII RULE 2 (3) CPC
1. The present suit has been instituted under Order XXXVII of Civil
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Suit No 769/23 Pg 2 of 5
Procedure Code, 1908 (‘CPC’) for recovery of amount of Rs. 1,00,000/-
with interest @ 24% per annum along-with cost.
2. Briefly stated, the case of the plaintiff, as outlined in the plaint, is:
2.1 The plaintiff and the defendant are acquainted with each other. On
2.11.2020, the defendant visited the plaintiff's shop and purchased food
supplements worth Rs. 1,02,038 (Rupees One Lakh Two Thousand
Thirty- Eight Only) under invoice no. GST/20-21/0075. The defendant
made a cash payment of Rs. 2,040 to the plaintiff and provided a post-
dated cheque for Rs. 1,00,000, dated 10.11.2020, drawn on ICICI Bank,
Modi Nagar, UP. Due to unforeseen circumstances and the impact of
COVID-19, the plaintiff was unable to present the cheque for payment
within three months.
2.2 The plaintiff later requested payment, but the defendant asked for
more time to arrange the funds. The defendant assured the plaintiff that
the payment would be made as soon as possible, but failed to do so.
Subsequently, on 25.05.2022, the defendant revisited the plaintiff's shop,
took the previous cheque, and issued a new cheque, bearing no. 000560
dated 1.06.2022, for Rs. 1,00,000, drawn on ICICI Bank, Modi Nagar,
Ghaziabad, UP-201204.
2.3 On 31.05.2022, the defendant contacted the plaintiff and requested
two additional months before presenting the cheque, citing a lack of
funds and financial difficulties. Following the defendant's instructions,
the plaintiff presented the cheque to his bank, Bank of India, Gandhi
Nagar branch, Delhi, on 2.08.2022. To the plaintiff's shock and dismay,
the cheque was dishonored and returned unpaid with the remark
“DRAWER’S SIGNATURE DIFFERS,” as noted in the cheque return
memo dated 03.08.2022.
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Suit No 769/23 Pg 3 of 5
2.4 The plaintiff then informed the defendant about the dishonoured
cheque, but the defendant asked for more time and continued to delay the
payment under various pretexts.
2.5 The plaintiff sent a legal notice to the defendant on 01.08.2023, via
speed post, demanding payment of the outstanding cheque amount. The
defendant deliberately and intentionally refused to accept the notice.
Hence, this suit was filed.
3. Summons of the suit were issued vide order dated 21.10.2023,
which returned as served on 10.01.2024 upon the defendant. As per the
office report, no appearance under Order XXXVII, has been filed by the
defendant. The statutory period for filing the appearance under order
XXXVII CPC has already expired.
4. Sh. Verma, Ld. Counsel for the Plaintiff has prayed that the suit be
decreed in terms of order XXXVII Rule 2 (3) CPC on account of non-
appearance.
5. I have heard the submissions and perused the material on record.
6. The plaintiff in support of its case has placed reliance upon the Tax
Invoice GST/20-21/0775 dated 02.11.2020, original cheque bearing no.
000560 dated 01.06.2022 for a sum of Rs. 1,00,000/-, returning memo
dated 03.08.2022, legal notice dated 01.08.2023 with dispatch proof.
7. In
M/s S.S. Steel Industry Vs M/s Shree Guru Hargobind Steels
CR.P. No.42/19, the Hon’ble High Court of Delhi held:
“10. Learned counsel further relies on the judgment
of the Division of this Court in
Comba Telecom Ltd.
Vs. S. Tel Private Ltd. 2016 (228) DLT 713 to which
I was also a party.The Division Bench in the said
judgment has held that in a Suit under summary
procedure under Order XXXVII, where summons
are duly served and the defendant has not entered
appearance, the defendant could not defend the Suit,
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Suit No 769/23 Pg 4 of 5
all allegations made in the plaint are deemed to be
admitted and the consequences are that the plaintiff
would be entitled to a decree as indicated under
Order XXXVII Rule 2 Sub Rule 3 CPC.
11. Order XXXVII Rule 2 Sub Rule 3
CPC specifically lays down that defendant shall not
defend the Suit unless he enters appearance and in
default of his entering appearance the allegations
made in the plaint shall be deemed to be admitted
and plaintiff would be entitled to a decree for the
sum not exceeding the sum mentioned in the
summons.
12. The learned Trial Court, though noticed the
judgment of the Division Bench of this Court in
Comba Telecom Ltd. (Supra), has held that the same
is not applicable on the ground that the Suit is not
maintainable under Order XXXVII CPC.
13. The Trial Court has clearly committed an error.
In view of the specific provisions of Order XXXVII
Rule 2 Sub Rule 3 CPC, it is not within the powers
of the Trial Court at that stage, to assess as to
whether the Suit satisfies the requirement of Order
XXXVII CPC or not. Once summons in the
prescribed form have been directed to be issued and
duly served, the defendant is obliged to enter
appearance within the statutory period, and on failure
of the defendant to enter appearance within the
statutory period, the averments in the plaint are
deemed to be admitted and the plaintiff is entitled to
a decree forthwith.”
8. Despite service, the defendants have failed to put up an appearance
within the stipulated period. Accordingly, the facts as averred in the
plaint, in view of Order XXXVII Rule 2 (3) CPC, are deemed to have
been admitted by the defendants, and the plaintiff is held entitled to a
decree in terms of the said provisions. The suit is accordingly decreed
under Order XXXVII Rule 2(3) CPC against the defendants and in
favour of the Plaintiff for the sum of Rs. 1,00,000/- along-with interest
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@ 6% per annum from the date of filing of the suit till the date of decree.
Costs are also awarded in favour of plaintiff. Decree sheet be prepared.
File be consigned to Record Room as per rules.
Pronounced in open court
On 17th August 2024 (AYUSH SHARMA)
CJ/EAST/KARKARDOOMA
DELHI/17.08.2024
This judgment contains 5 pages and each page has been signed by me.
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