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2021 DIGILAW 79 (GUJ)

Mena Vrajesh Dhanak v. Naynaben Dineshbhai Doshi

2021-01-29

BIREN VAISHNAV

body2021
ORDER : 1. This is a Civil Revision Application filed by the original defendant u/s. 115 of the Code of Civil Procedure, 1908 (‘Code’ for short). 2. The applicant who was the original defendant is aggrieved by the order dated 6.7.2018 passed by the learned Judge, Small Causes at Rajkot in Summary Suit No. 472/2017 below Exh.13. 3. The facts in brief are as under: (i) The respondent was the original plaintiff who moved the Small Causes Court by preferring Summary Suit No. 472/2017 under Order 37 of the Code. The case of the plaintiff respondent herein was that he had entered into an oral agreement with the defendant/applicant herein by which an amount of Rs. 7,00,000/- was advanced to the applicant-defendant for a period of 3-4 months. A cheque bearing No. 198516 dated 22.12.2015 was issued by the respondent-defendant in favour of the applicant, which the applicant failed to repay and therefore a summary suit was filed by the respondent to recover a sum of Rs. 7,00,000/- from the applicant. (ii) The applicant filed application Exh.13 before the trial Court. The applicant-original defendant by filing application under Order 7 Rule 11 contended that Order 37 is a special provision and a summary suit is not maintainable. The application under O-7, R-11 that a summary suit under O-37, R-1(2)(b) was only maintainable on a written contract. The plaint admittedly said that it was an oral contract and, a summary suit was therefore not maintainable. The learned trial Judge by the impugned order dated 6.7.2018 rejected the application under O.7, R.11 on the ground that the suit was maintainable and held that the application of the applicant under O.7, R.11 did not fall within the clauses of O.7, R.11 (a) to (d). Aggrieved by this, the present revision has been filed. 4. Mr. Hemal Shah, learned advocate for the applicant would submit as under: (i) He would submit on drawing the attention of the Court to the plaint that admittedly the suit was on oral contract and not a written one and, therefore, a summary suit was clearly not maintainable and, therefore, the application of the applicant under O-7, R-11 ought to have been entertained and the suit ought to have been dismissed. (ii) In support of his submission, Shri Shah had, at the time of admission, relied on a decision of the Bombay High Court in the case of Ms. (ii) In support of his submission, Shri Shah had, at the time of admission, relied on a decision of the Bombay High Court in the case of Ms. Purnima Jaitely vs. Ravi Bansi Jaisingh, AIR 2003 Bombay 494. He would reiterate, in support of his submission, that the Full Bench decision of the Bombay High Court in AIR 2003 Bombay 494 admittedly, a summary suit was not maintainable under Order 37. He would submit that a summary suit would lie on a settled account, on an acknowledgment of liability and on honored Cheque. He would therefore submit that admittedly when there was an oral contract, no summary suit would lie. In support of his submission, Mr. Shah also relied on the following decisions: (a) Sushil Kumar Gauba vs. Adarsh Kumar Gupta, 2014 (9) Laws 101 (P&H). (b) Commissioner of Income Tax vs. Deejay Hatcheries, 1994 (Law Suit) Bombay 859. (c) Bhargavi Constructions and Another vs. Kothakaput Muthyam Reddy and Others of Hon'ble Supreme Court dated 7.9.2017 in Civil Appeal No. 11345 of 2017. (d) Shamna B.V. The Manager, Hemambik Sanskrit High School, 2008 (Law Suit) Kerala 330. (e) Paresh P. Patel vs. Atul J. Desai in S.C.A. No. 7838/2012 dated 8.1.2013 of the Gujarat High Court. (iii) Mr. Shah would therefore submit that the trial Court failed to consider that O.37, R.1(2)(b)(i) provides that a suit for recovery of an amount would be maintainable only when it arises out of a written contract and in the present case, the suit was out of an oral contract. He would further submit that the trial Court failed to consider that suit upon a Cheque means a suit to recover money due on a Cheque which is dishonored. Such was not the case on hand and, therefore the suit was not maintainable. 5. Mr. Shashvat Shukla, learned counsel appearing for the respondent-original plaintiff would submit that the order rejecting the application under O.7, R.11 of the Code was just and proper. He submitted that the power of the Court to reject a plaint under O.7, R.11 is a drastic power conferred upon the Court to terminate a civil action at the threshold. Reliance was placed on the decision in the case of P.V. Guru Raj Reddy vs. P. Neeradha Reddy and Others, 2015 (8) SCC 331 : (i) Mr. He submitted that the power of the Court to reject a plaint under O.7, R.11 is a drastic power conferred upon the Court to terminate a civil action at the threshold. Reliance was placed on the decision in the case of P.V. Guru Raj Reddy vs. P. Neeradha Reddy and Others, 2015 (8) SCC 331 : (i) Mr. Shukla would submit that the plaint can be rejected only if it falls within the defined clauses contained in sub clauses (a) to (f) of Rule 11 of Order VII of the CPC. Perusal of the application Exh.13 filed by the applicant indicated that none of the requirements for the rejection of the plaint were pleaded, much-less satisfied. (ii) Mr. Dave would further submit that the application Exh.13 for rejection of the plaint proceeded on an erroneous premise that a suit upon a Cheque which is a Bill of Exchange is not liable to be tried as a summary suit. He would submit that Order XXXVII does not impose any bar upon institution of a suit to take away jurisdiction of the Court. He would submit that merely because a suit may not fall to be tried in a summary manner, it would not mean rejection of the plaint outright. In support of his submission, he relied on the decisions in the case of Aravindakshan vs. Sukumaran, 1999 (12) Laws (Ker) 99 of Kerala High Court and V.K. Enterprises and Another vs. Shiva Steels, 2010 (9) SCC 256 of Hon'ble Supreme Court. (iii) Mr. Shukla would then submit that unless the leave to defend is granted, the application under Exh.13 would itself not be maintainable. He would next submit that the suit under Order 37 against the Cheque was maintainable and according to him, this case was squarely covered by the decision of this Court rendered in Civil Revision Application No. 363 of 2017 dated 26.9.2017. Shri Shukla has annexed a copy of the judgment at page 25 with the affidavit-in-reply. 6. He would next submit that the suit under Order 37 against the Cheque was maintainable and according to him, this case was squarely covered by the decision of this Court rendered in Civil Revision Application No. 363 of 2017 dated 26.9.2017. Shri Shukla has annexed a copy of the judgment at page 25 with the affidavit-in-reply. 6. Having perused the order under challenge and the provisions of O.37, R.1(2) and the provisions of O.7, R.11 of the Code, the following reasons indicate that the Court agrees with the submission of Shri Shukla: (i) O.7, R.11 as held by the Supreme Court in the case of P.V. Guru Raj Reddy (Supra) is a drastic measure and would be applicable only when there is no cause of action that arises. The conditions precedent for the exercise of power under O.7, R.11 have to be considered only if the averments read in the plaint as a whole do not disclose a cause of action and when the suit is barred. In other words, when reading the plaint it comes forth that where the suit is under valued or where there is an absence of cause of action or when the statement in the plaint indicates that the suit is barred or the plaint is not filed in duplicate, that resort can be sorted under O.7, R.11 of the Code. 7. Perusal of the facts on hand would indicate that it is the case of the respondent-original plaintiff that he is entitled to recover a sum of Rs. 7,00,000/- which he advanced to the applicant-original defendant on an oral contract. According to the applicant, the suit is not maintainable because if it is an oral contract, the procedure under Order 37 of the Code cannot be followed. At best therefore, the case of the applicant was that the suit instituted by the respondent-original plaintiff was a suit which should not be tried as a summary suit. In essence therefore the grievance of the applicant-defendant in an application under Exh.13 was that the suit could not be tried in a summary nature but it could have been tried as a long cause suit. In essence therefore the grievance of the applicant-defendant in an application under Exh.13 was that the suit could not be tried in a summary nature but it could have been tried as a long cause suit. Reading the application under O.7, R.11 would indicate that the case of the defendant was that the recovery of money on the basis of Cheque was according to the applicant by way of an oral contract, so at best, as held by the Kerala High Court in the case of Aravindakshan (Supra), there was no bar to the filing of the suit. The dispute was as to whether it was tried as a summary suit or which could be tried as an ordinary suit. Such an issue can only be adjudicated after an application for leave to defend was filed. It would be worthwhile to reproduce Para 22 of Aravindakshan (Supra) which reads as under: “22. The rejection of the plaint by the Munsiff under O. VII, R.11(d) of CPC is. n our opinion, wholly without jurisdiction. As held by the apex Court, the grounds must be such as to fall within the categories specified in order VII R.11. O. VH R.11(d) applies only where the suit appears from the statement in the plaint to be barred by any law. There is no bar to the filing of the suit. The dispute is as to whether it shook! be tried as summary suit or ordinary suit, which can as well be adjudicated later A la-issuing summons. The rejection of the plaint without even numbering is totally illegal. The learned Munsiff, in the facts and circumstances of this case, acted illegally and with material irregularity in not numbering the plaint and issuing summons under O.XXXVII and in rejecting the plaint under O. VII, R.11(d) of the Code of Civil Procedure. If fee order of the learned Munsiff is allowed to stand, certainly it would occasion failure of justice and denial of benefits conferred on the people of this country by the Parliamentary legislation. The learned Munsiff had a statutory duty to number the plaint and issue summons under O. XXXVII R. 2 and 3 of the Code of Civil Procedure if the plaint is otherwise in order.” 8. The learned Munsiff had a statutory duty to number the plaint and issue summons under O. XXXVII R. 2 and 3 of the Code of Civil Procedure if the plaint is otherwise in order.” 8. Worthwhile also it will be to consider the decision of this Court in CRA No. 363/2017 where the Court after considering the Full Bench decision of the Bombay High Court observed and held that a suit filed for recovery of amount on the basis of a Cheque under summary procedure is maintainable. The oral order of this Court dated 26.9.2017 reads as under: “1. The Civil Revision Application has been filed by the applicants-defendants under section 115 of the Civil Procedure Code challenging the order dated 10.07.2017 passed by the Principal Senior Civil Judge, Rajkot (hereinafter referred to as ‘the Trial Court ’) below Exh.11 in Summary Suit No. 1 of 2017, whereby the Trial Court has dismissed the application of the applicants seeking rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code. 2. It is sought to be submitted by learned Advocate Mr. Pratik Jasani for the applicants that the cheque was drawn by the respondent-plaintiff in favour of the husband of applicant No. 1, who has already expired and therefore, the suit against present applicants-defendants under Order XXXVII would not be maintainable. In support of his submission, he has relied upon the decision of the Supreme Court in the case of Ms. Purnima Jaitely vs. Ravi Bansi Jaisingh, AIR 2003 Bombay 494. 3. The Court does not find any substance in the submission of learned Advocate Mr. Jasani. The respondent-plaintiff having filed the summary suit under Order XXXVII of the Civil Procedure Code against the present applicants-defendants for the recovery of amount, which has been paid by the respondent-plaintiff to the deceased Devenbhai Desai, who happened to be the husband of the applicant No. 1, father of the applicant No. 2 and son of applicant No. 3 by drawing the cheque in his favour. After the death of the said Devenbhai Madhubhai Desai, the suit has been filed against the present applicants being the legal heirs. The suit is filed for recovery of amount on the basis of cheque, which is a bill of exchange, the suit as such could not be said to be not maintainable under Order XXXVII of the Civil Procedure Code. 4. The suit is filed for recovery of amount on the basis of cheque, which is a bill of exchange, the suit as such could not be said to be not maintainable under Order XXXVII of the Civil Procedure Code. 4. In that view of the matter, the Court does not find any substance in the Civil Revision Application and hence, present Civil Revision Application is dismissed.” 9. Perusal of the decisions relied upon by Mr. Hemal Shah, learned counsel of the applicant especially in the case of the Gujarat High Court in Special Civil Application No. 7838 of 2012 and other decisions is that what was under challenge in those proceedings, was the issue whether the suit at all could have been tried as a summary procedure. What the learned counsel for the applicant therefore misses to suggest is that it cannot be a case where powers under O.7, R.11 could have been invoked to assail the procedure of trial of the suit that was an issue or a dispute that could be decided subsequent to the leave to defend application filed by him. What was disputed by him was the jurisdiction of the summary procedure and it would not fall within the parameters of the objections envisaged under O.7, R.11 of the Code. 10. For the aforesaid reasons, I do not find any reason to interfere with the order passed by the Trial Court in rejecting the application of the applicant under O.7, R.11 of the Code. The revision application therefore stands dismissed. Ad-interim relief granted earlier stands vacated forthwith. No order as to costs. Notice is discharged.