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1998 DIGILAW 1242 (RAJ)

Hanuman Prasad v. Surendra Kumar

1998-11-24

MOHD.YAMIN

body1998
JUDGMENT 1. - Heard in details.In order to appreciate the controversy it is necessary to mention brief facts of the case. 2. A suit under Order 37 CPC was filed by Hanuman Prasad against Surendra Kumar before Munsif Nagaur for recovery of Rs. 4316/-. The averments in the plaint are that a house was let out to Surendra Kumar by Nand Kishore. Rent of the house accumulated as the same was not paid. It amunted to Rs. 3,700/-. The defendant was unable to pay this amount to Nand Kishore. Plaintiff Hanuman Prasad intervened and then the house was vacated. It was agreed that an amount of Rs. 3,000/- will be paid by the defendant instead of Rs. 3,700/-. The defendant then executed a pro-note for Rs. 3,000/- and agreed to pay the amount within one month. Nand Kishore made a demand many a time but the amount remained unpaid. Since Hanuman Prasad was a mediator he had to pay the amount of rent alongwith interest to Nand Kishore. Then pronote was endorsed in his favour. The plaintiff asked the defendant to pay him a sum of Rs. 4,170/- together with interest but he did not pay. Therefore, the suit was filed and the plaintiff prayed that the suit be decreed for Rs. 4,316/- in favour of plaintiff together with interest @ 18%. The defendant appeared and prayed for leave to defend. The learned Munsif granted conditional leave to defend. The condition was not fulfilled. Learned Munsif then decrred the suit on 5.2.88 for an amount of Rs. 3,000/- with pendentilite and future interest @ 6%. 3. An appeal was preferred before the learned Additional District Judge, Nagaur who by his judgment dated 1.8.89 allowed it and held that the relief was sought beyond Order 37 of CPC. The decree was set-aside and it was ordered that the suit be tried as a regular suit. 4. This second appeal has been preferred in which a substantial question has arisen whether in the facts and circumstances of the case the first appellate court has illegally held that the suit was not maintainable under Order 37 of CPC? 5. Learned counsel for the appellant submitted that the basis of the suit was a pronote which stated only the principal amount as Rs. 3,000/-. 5. Learned counsel for the appellant submitted that the basis of the suit was a pronote which stated only the principal amount as Rs. 3,000/-. The court has allowed pendentilite and future interest, it would do so even in a suit under Order 37 of CPC. According to him it was within the jurisdiction of the court to allow interest. He cited Smt. Saroj & Ors. v. Indian Overseas Bank & Anr., 1996 DNJ (Raj.) page 232 , in which the bank had filed a simple money suit on the basis of pronote. Some property stood hypothecated. Objection was raised that the suit could only be filed as per Order 34 CPC. It was held that the loan was given by the bank on pronote and the house was collateral security, as such it was simply a money suit based on pronote and no interference was called for in revision as the suit was within the parameters of Order 37 CPC. 6. On the other hand, learned counsel for the respondent submitted that the plaint mentions about the previous transactions. He also submitted that pronote does not specify the rate of interest. He further submitted that the prayer is to decree the suit with expenses for notice. According to him this makes the suit beyond the scope of Order 37 CPC. 7. I have given my anxious consideration to the controversy in question. 8. According to the relevant provision of Order 37 Rule 1(2) CPC the order applies to suits based upon bill of exchange, hundies and promissory notes. Admittedly this suit was based on pronote. The scope of Order 37 CPC is limited to such classes of suits which are mentioned therein and the suit based on pronote is one of them. It hardly matters whether the pronote mentions the rate of interest or not. It hardly matters whether the plaint claimed expenses for the notice and it hardly matters whether the averments of the plaint mentioned about the balance of amount of rent which was due against the defendant which was paid by the plaintiff as a mediator alongwith interest. The amount of interest paid by the plaintiff was 1,170/-. The basic idea of such suits is certainly abridgement of the proceedings and rapidity of disposal. Such a suit is a suit on document. The amount of interest paid by the plaintiff was 1,170/-. The basic idea of such suits is certainly abridgement of the proceedings and rapidity of disposal. Such a suit is a suit on document. The order is applicable to all suits on promissory notes, bills of exchange and hundies even though they are made non-negotiable by specific terms. This view was taken in AIR 1963 Calcutta page 36, Messrs. Tailors Priya, a firm, v. Messrs. Gulabchand Danraj . When the scope of summary suit is such the arguments of the learned counsel for the respondent that the suit is not triable under Order 37 CPC, does not hold water. This Court in Smt. Saroj & Ors. v. Indian Overseas Bank & Anr. (supra) held that a suit was maintainable under this Order which was based on a pronote though property was mortgaged as collateral security. 9. What the trial court did was that it passed the decree for the principal amount which was stated in the pronote and allowed interest under Section 34 of the CPC. Such an order could be passed by trial court. The first appellate court illegally held that the suit was not triable under Order 37 of Code of Civil Procedure. 10. Consequently, the appeal is allowed and the order of the learned first appellate court is set-aside. The judgment and the decree of the trial court are maintained. No orders as to costs.Decree of Appellate Court and that of Trial Court Maintained.Appeal Allowed. *******