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2002 DIGILAW 26 (DEL)

KEVAL KRISHAN CHADHA v. A. K. KOHLI

2002-01-09

P.C.JAIN

body2002
R. C. Jain ( 1 ) THIS revision petition raises a short question of law :- "is an agreement entered between the parties pursuant to a compromise arrived with the aid of police is not a valid and enforceable agreement and cannot form the basis of a summary suit under the provisions of order XXXVII of the Code of Civil Procedure. ?" ( 2 ) THE petitioner herein filed a suit under order xxxvii of the Code of Civil Procedure for recovery of rs,90,424/- against the respondent on the basis of agreement dated 8/09/1998, reached between the parties pursuant to compromise/settlement through the cooperation of S. H. O. Police Station I. P. Estate, new Delhi. The learned Civil Judge to whom the suit was made over instead of treating the said suit as a summary suit and taking further proceedings in accordance with the provisions of order XXXVII Code of Civil Procedure, by an order dated 11. 5. 2000 treated the said suit as an ordinary civil suit and directed the issue of summons for settlement of issues in the ordinary form against the defendant, holding that the agreement relied upon by the plaintiff was not an agreement contemplated by rule 2 (b) of order XXXVII and it lacked order XXXVII code of Civil Procedure. Aggrieved by the said order the petitioner had earlier filed a CM (M) bearing No. 388/00 which was dismissed as withdrawn by this court on. 17. 7. 2000. however with liberty to the petitioner to take appropriate remedy against the impugned order. The petitioner has subsequently filed the present revision petition. ( 3 ) NOTICE to show cause was issued to the respondent who did not choose to appear or he represented in the proceedings. I have heard the learned counsel for the petitioner and have given my thoughtful consideration to his submissions. The agreement which is the basis of the summary suit filed by the petitioner is contained in a deed dated 8. 9. 98 prefaced as compromise letter . The relevant portion of the said deed reads as under:- "today, the 8/9/1998, we both have agreed to solve the matter by mutual understanding through the cooperation, S. H. O. I. P. Estate, New delhi-11000, for a sum of Rs. 28,300. 00 to be paid by Ajay Kohli to Mr. Kewal krishan Chadha, Proprietor, M/s. K. C. and Co. as per Rs. 28,300. 00 to be paid by Ajay Kohli to Mr. Kewal krishan Chadha, Proprietor, M/s. K. C. and Co. as per Rs. 1,000/- per month starting from 1. 10. 1998. So and so forth, on first day of each month. Full payment of Rs. 28,3007- shall be paid by Mr. Ajay Kohli by monthly cheques of Rs. 1,000. 00. All the cheques shall be given in advance to kewel Krishan Chadha, Prop. K. C. and Co. by Mr. Ajay Kohli and if he fails to honour the payment or defaults in payment or dishonours the cheque for any reason, the above understanding of compromise shall cease and Mr. Kewal krishan Chadha, Proprietor of M/s K. C. and Co. shall have all the right to take the legal action against Mr. Ajay Kohli for full amount of rs. 64,018. 25 Shares shall be returned on payment. " ( 4 ) LEARNED counsel for the petitioner has emphatically urged that the impugned order of the learned trial court in treating the summary suit filed by the petitioner as an ordinary civil suit is illegal and based on wholly erroneous premises that the agreement envisaged in order XXXVII Code of Civil Procedure should be voluntarily agreement prior to the arising of dispute and the admission should be prior to the intervention of any form either judicial, police etc. and that any agreement wherein the liability is allegedly admitted after the dispute has arisen before the police is outside the preview of order XXXVII Code of Civil Procedure. There seems to be considerable force in this contention because no such riders as is sought to be imported exist in the provisions of order XXXVII Code of Civil Procedure. and that any agreement wherein the liability is allegedly admitted after the dispute has arisen before the police is outside the preview of order XXXVII Code of Civil Procedure. There seems to be considerable force in this contention because no such riders as is sought to be imported exist in the provisions of order XXXVII Code of Civil Procedure. Sub rule (2) of rule (1) of order XXXVII Code of Civil Procedure provides that subject to the provisions of sub rule (1), the provisions of order xxxvii apply to the following classes of suits, namely:- (A) suits upon bills of exchange, hundies and promissory notes; (B) suits in 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 when the claim against the principal is in respect of a debt or liquidated demand only. ( 5 ) IT is, therefore, manifest that a suit for the recovery of debt or liquidated demand in money payable by the defendant arising on a written contract can be filed and treated as a summary suit. A bare reading of the agreement contained in the deed dated 8. 9. 90 would leave no doubt that the defendant had agreed to pay a liquidated sum of money to the plaintiff. The mere fact that the said agreement was arrived between the parties by mutual understanding through the aid or cooperation of a police officer with whom a complaint had been made by itself does not render the said agreement invalid or unenforceable in law on the premise that it is unvoluntary. It might be open to the defendant to take such a plea in the defence of the suit but it was not for the trial court to raise any adverse presumption so as to doubt the validity of the agreement merely because the same was reached between the. parties pursuant to a compromise following a complaint before the police. It might be open to the defendant to take such a plea in the defence of the suit but it was not for the trial court to raise any adverse presumption so as to doubt the validity of the agreement merely because the same was reached between the. parties pursuant to a compromise following a complaint before the police. In the considered view of this court the basis of the summary suit is a written contract and the petitioner was within his rights to maintain a summary suit based on such an instrument. ( 6 ) IN view of the above discussion the revision petition is allowed and the impugned order of the learned civil judge dated 11. 5. 2000 is hereby set aside. The trial court is directed to register and proceed with the suit as a summary suit.