Bhatinda Chemicals Ltd. vs Mahesh and Co. Mandsaur

N.K. Mody, J.

Being aggrieved by the Judgment and the Decree dated 25.4.96 in civil suit No. 1-B/95 passed by IADJ, Mandsaur, whereby the suit filed by the respondent has been decreed and appellant has been directed to pay a sum of Rs. 2,40,000/- including interest, the present appeal has been filed.

Short facts of the case are that respondent filed a suit under Order XXXVII (Summary Procedure) for realization of Rs. 2,40,000/- on 5.1.95 alleging that the respondent is a proprietorship firm which is carrying on the grain business. Appellant is running a Soyabeen Extraction Plant at Bhatinda in Punjab State. It was alleged that appellant has purchased 5 trucks of Soyabeen on 27.10.93 @ Rs. 790/- per quintal and on 30.10.93, Soyabeen was purchased through broker @ Rs. 752/- per quintal. It was alleged that vide different GRS and PRS, goods were sold to the appellant against which a sum of Rs. 7,79,993/- was paid by the appellant and a sum of Rs. 2,00,848.50/- was outstanding which was not paid hence the suit was filed. Since the suit was filed under Order XXXVII CPC, therefore, notice for summons for appearance of the appellant was issued. Appearance was made by the appellant on 14.2.95 under sub rule (3) of Rule 3 of Order XXXVII by moving an appropriate application and it was also intimated that the appellant intends to defend himself. Thereafter, respondent filed an affidavit on 28.2.95 and vide order dated 1.3.95, learned court below directed the respondent to comply as per Order XXXVII Rule 3 (4) CPC. Vide order dated 25.4.96, the court proceeded ex-parte against the appellant and the suit was decreed.

Learned counsel for the appellant submits that the suit was not maintainable. It is submitted that Order XXXVII prescribes a summary procedure. As per sub-rule (2) of Rule 1 of Order XXXVII CPC, the following class of suits are covered under the summary procedure :

(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

(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 penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

Learned counsel submits that since the case of the respondent is not covered by any of the categories, hence the suit itself was not maintainable. Learned counsel submits that since the present suit is filed on the basis of goods supplied, therefore, the suit was not maintainable. Reliance is placed on a decision of this Court in the matter of Raipur Iron and Steel Works vs. M/s Simplex Engineering reported in 1989 (II) MPWN Note 70, wherein the suit was for recovery of money based on bills and declaration that too not bilateral documents so as to spell out a contract between the parties for supply of any goods, this Court held that a bare reading of sub-rule (2) will go to show that Order 37 will apply to suits upon bills of exchange, hundis and promissory notes as mentioned under clause (a) and it shall also apply to suits in which plaintiff seeks only to recover debt or liquidate demand in money payable by the defendant with or without interest arising on a written contract. On the strength of aforesaid judgment, it was submitted that suit deserves to be dismissed as the same was not based on any bilateral contract. It was also submitted that inspite of the order dated 1.3.95, no summon was issued to the appellant by the learned court below under sub rule (2) of Rule 3 of Order XXXVII CPC, after appearance made by the defendant, which is mandatory requirement of law for the plaintiff to serve the defendant the summons of Judgment in Form No. 4-A in Appendix B and on such form as may be prescribed from time to time. It is submitted that from perusal of record, it is evident that no summons were issued. It is submitted that only on the basis of fact that application was filed on behalf of the appellant on 14.2.95 and 26.6.95 whereby the appellant prayed that he may be permitted to defend himself, the learned court below committed error in passing the Judgment against the appellant.

From perusal of record, it appears that appellant himself appeared and moved an application whereby leave was sought to defend the suit. In view of this, it cannot be said that learned court below committed error in decreeing the suit without issuing any notice to the appellant for judgment. Since the appellant himself has appeared and prayed for leave to defend, therefore, issuance of summons for judgment, lost its importance. However, since the suit was not covered under any of the categories as mentioned in sub-rule (2) of Rule 1 of Order XXXVII, therefore, learned court below committed error in decreeing the suit against the appellant under that procedure.

In view of this, the appeal stands allowed. The Judgment and the Decree passed by the court below is set aside. The case is remanded back to the learned trial court for disposal of the suit as an ordinary civil suit. Appellant shall remain present before the court below on 3.7.06 and the learned court below before proceeding further shall secure the presence of the respondent who is plaintiff before the trial court as the respondent is absent, and shall dispose of the suit in accordance with law.

Learned counsel for the appellant submits that the case is remanded for fresh decision and the appellant is not liable for the decree passed by the court below, therefore, appellant is entitled for refund of court fee. Reliance was placed on a decision of this Court in the matter of Suresh Kumar Chowkse Vs. State of M.P. and Another, , wherein this court held that since the suit was remanded after setting aside the decree, therefore appellant is entitled for refund of court fee.

In the present case, the suit was decreed under the summary procedure, while the suit was not maintainable. Hence the appellant is entitled for refund of court fee.

The appeal stands disposed of. No order as to costs.

C.C. as per rules.