Final Order 3

Order Details: COPY OF JUDGMENT
Pdf Text: Mahendra Kumar vs. Ram Dulare CS No. 157/23
IN THE COURT OF MS. BABITA PUNIYA
SENIOR CIVIL JUDGE : NORTH-EAST DISTRICT
KARKARDOOMA COURT COMPLEX, DELHI
Civ Suit No. 157/2023
CNR No. DLNE03-000284-2023
In the matter of:
Sh. Mahendra Kumar,
S/o late Saleg Ram,
R/o H. No. E-161, Street No. 6,
near Anglo Indian School,
Subhash Vihar, North Ghonda,
Delhi-110053 ............Plaintiff
Vs.
Sh. Ram Dulare,
S/o late Bara,
R/o H. No. C-2/1894,
Sector 27 Rohini,
Khera Kalan (Resettlement Colony),
North West, Delhi-110082 .............Defendant
Date of Institution : 05.04.2023
Date of Reserving Judgment : Not reserved
Date of Decision : 23.05.2023
Final Decision : Decreed
JUDGMENT UNDER ORDER XXXVII RULE 2 (3) CPC.
1. This is a summary suit under Order XXXVII CPC for
recovery of Rs. 2,00,000/- based on a cheque.
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Mahendra Kumar vs. Ram Dulare CS No. 157/23
2. Briefly stated, the facts of the case as per plaint are that in
the month of October, 2021 the defendant approached the
plaintiff’s son for a friendly loan of Rs. 8 lacs and on the request
of his son, plaintiff advanced a loan of Rs. 4 lac to th defendant
in the presence of one Sh. Arun Kumar.
3. It is further averred in the plaint that in discharge of part
liability (towards repayment of loan), the defendant issued a
cheque bearing number 000001 dated 17.01.2022 drawn on Bank
of Baroda, Shahbad Daulatpur, Delhi to the plaintiff. However,
the said cheque was returned unpaid with the remarks “payment
stopped by drawer” vide return memo dated 27.01.2022
whereupon he issued a legal demand notice dated 11.02.2022,
requiring the defendant to pay the amount and since the said
amount was not paid, plaintiff filed the present suit under Order
37 CPC.
4. Vide Order dated 05.04.2023, summons in prescribed
Form was directed to be issued to the defendant. The summons
along with copy of the suit was duly served on the defendant on
15.04.2023 but he did not enter appearance within the stipulated
period of 10 days.
5. It was argued on behalf of the plaintiff that since the
defendant has failed to enter appearance, a decree in terms of
Order XXXVII Rule 2 (3) of the CPC on the said ground may be
passed in favour of the plaintiff and against the defendant.
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Mahendra Kumar vs. Ram Dulare CS No. 157/23
6. Learned counsel for the plaintiff also placed reliance on a
judgment passed by the Hon’ble High Court of Delhi in the case
of M/s S S Steel Industry vs M/s Shri Guru Hargobind Steels
decided on 5 September 2019 wherein it was held as under:-
“.....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.
11. 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, 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.
12. 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.
13. The learned Trial Court, though
noticed the judgment of the Division
Bench of this Court in Comba Telecom
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Mahendra Kumar vs. Ram Dulare CS No. 157/23
Ltd. (Supra), has held that the same is
not applicable on the ground that the
Suit is not maintainable under Order
XXXVII CPC.
14. 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.
7. I have heard the learned counsel for the plaintiff and have
also perused the file carefully.
8. Order 37 is a special procedure which is meant to provide
speedy trial and remedy in specific cases. When a suit is filed
under Order 37 CPC summons are required to be issued in the
prescribed form and thereafter the defendant, if he wants to
contest, has to enter appearance within 10 days thereof. Relevant
provisions of Order 37 (3) (1) reads as under:-
"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
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2, serve on the defendant a copy of the
plaint and annexure 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
notice on him.
9. In the case in hand, since the defendant has failed to enter
the appearance within the statutory period, the averments in the
plaint are deemed to be admitted and the plaintiff is entitled to a
decree forthwith. Accordingly, the plaintiff is held entitled to a
decree for a sum of Rs. 2,00,000/- under Order XXXVII Rule 2
Sub Rule 3 CPC with interest @ 6 % p.a. from the date of filing
of the suit till realization.
10. Costs of the suit is also awarded to the plaintiff.
11. Decree sheet be drawn accordingly on filing of deficient
court fees, if any,
Announced in open Court
on 23rd day of May, 2023
(Babita Puniya)
Senior Civil Judge
N/E District, KKD/Delhi/23.05.2023
This judgment contains 05 pages and each page bears my
signature.
(Babita Puniya)
Senior Civil Judge
N/E District, KKD/Delhi/23.05.2023
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