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1995 DIGILAW 506 (DEL)

N. K. BANERJI v. N. K. KAUSHIK, CIVIL JUDGE

1995-07-17

MANMOHAN SARIN

body1995
MANMOHAN SARIN ( 1 ) THE petitioner by this petition filed under Article 227 of the Constitution of India is assailing the order dated 7. 3. 1995 (hereinafter referred to as an impugned order ) of shri N. K. Kaushik, Civil Judge, Delhi by which the learned Civil Judge directed the suit filed by the petitioner under Order XXXVI I of Code of Civil Procedure. to be tried as an ordinary suit and directed the respondent to file the written statement. The learned Judge in the impugned order further held that even if it was assumed that the suit would fall under Order XXXVII. the respondent had made out a case for grant of leave to contest and for condonation of delay of one day in seeking leave to contest. ( 2 ) THE facts in brief leading to filing of the present petition are:- (I) The petitioner is an advocate and had been engaged by the respondent No. 2 Bank for conducting cases of its different Branches. The petitioner raised his bills for services rendered, which according to the petitioner have not been paid. The petitioner claims that out of a total sum of Rs. 17,457. 00 only part payment of Rs. 2418. 00 was made by the respondent/bank leaving a balance of Rs. 15,038. 00 which remained unpaid. The petitioner claims interest at the rate of 24% and claims that a total sum of Rs. 22,000. 00 was due to him as on 15. 7. 1995 which had not been paid. The petitioner served a notice of demand dated 22. 3. 1994 claiming the outstanding amount together with interest but the Bank failed to pay. It may be noticed that the notice of demand does not mention any rate of interest. The petitioner, in these circumstances, instituted the suit under Order XXXVII C. P. C. claiming that the written contract stood codified in the bills, originals of which were in possession of the defendant. The petitioner filed alongwith the bill a statement giving the particulars of the invoices and the amounts due. (II) The defendant on being served with the summons entered appearance and thereafter upon service of the summons of judgment sought leave to contest. The petitioner filed alongwith the bill a statement giving the particulars of the invoices and the amounts due. (II) The defendant on being served with the summons entered appearance and thereafter upon service of the summons of judgment sought leave to contest. The respondent claimed in the application for leave to contest that the suit as filed under Order XXXVII C. P. C was not maintainable as the bills of the petitioner were neither the Bills of exchange nor promissory note and did not form a written contract. Besides it was stated that the suit included time barred bills relating to 1990. On merits it was stated that as per the schedule of fees of the Bank, the Bank had paid the petitioner 3/4th of the fees payable in cases of ex parte decree. The respondent claimed that all bills of professional services of the petitioner had been paid except the bills for expenses amounting to Rs. 270. 00 and that the Bank had no intention to withhold the payment. In the application seeking condonation of delay it was explained that the delay of one day in seeking leave to contest was under the bona fide impression that after appearance had been entered within ten days respondent bona fide believed that action to be taken on the summons for judgment was on the date fixed in the court and for which purpose an advocate was sought to be engaged. ( 3 ) THE petitioner who appeared in person has been heard at length- The petitioner argued that the learned Civil Judge had no jurisdiction to condone the delay in seeking leave to contest. Alternatively even if the Jurisdiction was there, the respondent had failed to establish sufficient cause. The petitioner relied on the Full Bench decision in M/s. Printpak Machinery Ltd. Vs. M/s. Jay Kay Paper Congesters; REFERRED TO at AIR 1979 Delhi 217. In the said case it was held that in the event of the defendant not obtaining leave to contest within the prescribed period a decree would follow in accordance with the High Court Rules, notwithstanding contrary provisions in the amended order XXXVII of Civil Procedure Code. Further that the High Court Rules would prevail over the provisions of C. P. C. in event of any inconsistency. The petitioner s reliance on the said authority is completely misconceived. Further that the High Court Rules would prevail over the provisions of C. P. C. in event of any inconsistency. The petitioner s reliance on the said authority is completely misconceived. Chapter XV Rules 2 and 3 of the Delhi High Court (Original Side) Rules 1967 have been amended vide a notification dated 13. 1. 1982 published in the Delhi Gazette Part II Section I, by virtue of which "order XXXVII of the Civil Procedure Code as in force from time to time shall apply to suits filed under this Chapter". This being the legal position, the learned Civil Judge has acted within his jurisdiction in considering the application for leave to contest and condoning the delay in seeking leave in accordance with Order XXXVII Rule 3 (7) C. P. C. The learned Civil Judge has correctly condoned the delay of one day as the same was on account of a bonafide mistake and there was sufficient cause for the same. ( 4 ) THE aforesaid contentions of the petitioner are of no consequence as the suit filed by the petitioner is outside the ambit of the provisions of Order XXXVII of the Code of Civil Procedure. The petitioner was asked in Court to state whether all the terms and conditions of his professional services were embodied in the bills raised by the petitioner and submitted to the Bank. The petitioner was unable to so state and replied that he had been engaged as per the terms of vakalatnama. The petitioner stated that the bills were in possession of the bank. The petitioner was asked to produce a proforma of his bill to ascertain if it contained the terrms and conditions of rendering professional services so that the petitioner could substantiate his contention that the suit was based on a written contract which was codified in the Bill raised. The petitionerwas unable to do so. It is thus evident that the suit of the. petitioner cannot be said to be falling under Order XXXVII (2) (b) (i) C. P. C. The impugned order passed by the trial court accordingly does not suffer from any infirmity or any error of jurisdiction or material irregularity. The petition has no merit and is dismissed.