ORDER
1.The civil revision petition is filed against the order of the V Additional Chief Judge, City Civil Court, Hyderabad passed in IA No.115 of 1999 in OS No.216 of 1999 dated 16-8-1999 under which the petitioner-defendant’s application for leave to defend the suit purported to have been filed under Order 37, Rule 5 CPC has been dismissed.
2. The plaintiffs filed the suit for recovery of Rs.28,00,000/- and odd with interest. After summons for judgment in the suit were served on the defendant under sub-rule (4) of Rule 3 of Order 37 CPC, the defendant applied for leave to defend the suit disclosing various defences on which the defendant would rely. The learned Judged held that in respect of claim of interest the defence indicated by the defendant constitute a triable issue and in respect of certain amounts covered by items 5, 6, 7 and 8 under which certain amounts are said to have been advanced to the defendant, as there are no cheque numbers, that constitutes another triable issues. These items are said to have covered as amount of Rs.1,72,000/-. The learned Judge further held that inasmuch as notice was issued on behalf of the plaintiff to the defendant for repaying the amounts in question and inasmuch as no reply has been sent by the defendant, the amount of Rs.16,00,000/- which appears to be principal amount after deducting Rs.1,72,000/- should be deposited as a condition for granting leave to defend. Accordingly, the learned Judge granted leave to defend the suit only on deposit of Rs.16,00,000/- by the defendant.
3. The learned Counsel for the
petitioner in this revision petition points out that the suit itself is not maintainable under summary procedure under Order 37 CPC inasmuch as the alleged transaction does not fall under any of the categories of transactions enumerated in sub-rule (2) Rule 1 under Order 37 CPC, which is extracted below.
(2) 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 is 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.
The contention is that the averments in the plaint go to show that the cheques mentioned in the plaint are those issued on behalf of the plaintiff in favour of the defendant by way of advancing loan to the defendant. The contention is that in view of this, it cannot be said that the suit is based on bills of exchange, hundies or promissory notes as mentioned in clause (a) of sub-rule, (2) of Rule 1 of Order 37 CPC. The learned Counsel for the respondent on the other hand contends that inasmuch as the suit is based on cheques in the sense that it was under the cheques that the defendant was given the loans, the requirement of
sub-rule, (2), Rule 1 Order 37 CPC are satisfied.
4. A careful reading of Order 37, Rules 1 and 2 CPC would disclose that the prevision of summary suits under Order 37 CPC could be invoked only in respect of the suits based on specific categories of transactions. Obviously, the category of suits mentioned in clause (b) of sub-rule (2), Rule 1 CPC is not applicable. Clause (a) of sub-rule (2), constempates that Order 37 CPC would be applicable where the suit is based on bills of exchange, hundies and promissory notes. As rightly contended by the learned Counsel for the petitioner in this case the suit cannot be said to be based on cheques in as much as no cheques have been issued by the defendant in favour of the plaintiffs. The mere that the cheques are said to have been issued by the plaintiffs in favour of the defendant by way of advancing loan to him in itself does not bring the suit under the category specified in clause (a) sub-rule (2) of Rules 1 under Order 37 CPC. The cheques in this case may constitute the mode of payment by the plaintiffs to the defendant and they may constitute evidence of transaction of the loan but they cannot be said to be the basis of the suit, inasmuch as they were not issued by the defendant in favour of the plaintiffs. That in such circumstances Order 37 CPC cannot be invoked is obvious enough. If any authority is needed, we have the same by way of a judgment of Syed Moosa Emani v. Sunil Kumar Gilani, AIR 1982 Del. 590, wherein it has been held that for a suit to be based on cheque, the cheque must be in favour of plaintiff. A similar view has been taken by Rajasthan High Court in the case of Lalchand Jain v. Smt. Gheesi, . In that the suit was said to be filed under Order 37 CPC on the basis of a bank draft drawn in favour of defendant. It was held that Order 37 CPC is applicable.
5. From this, it is obvious that the facts of the case show that summary procedure as contemplated under Order 37 CPC cannot be invoked and a suit under the said order in respect of the transaction in question is not maintainable. In view of this, the order of the learned Judge imposing a condition on the defendant to deposit a sum of Rs.16,00,000/- cannot be justified. At any rate, in view of the finding that the suit itself is not maintainable under Order 37 CPC the learned Judge shall proceed with the matter on the basis that the provisions of Order 37 are not applicable. Accordingly, the CRP is disposed of.
