The main legal point established is that under Order 37 CPC, if the defendant fails to enter appearance, the plaintiff is entitled to a decree for the claimed sum, provided the suit falls within the ambit of the order.

CM No. 33590 of 2016 (exemption)

Exemption is allowed subject to all just exceptions.

CM (M) No. 916 of 2016 and CM No. 33589 of 2016 (stay)

1. By the present petition, the petitioner seeks to impugn the order dated 21.07.2016 passed by the trial court whereby the trial court treating the suit filed by the petitioner as an ordinary suit and not a suit under Order 37 CPC, issued fresh summons to the defendant/respondent despite the fact that the defendant did not enter appearance within 10 days on being served with summons.

2. The petitioner/plaintiff has filed the suit under Order 37 CPC for recovery of Rs. 2.50 lacs. It is stated that the petitioner is an Advocate by profession and was engaged by the respondent and a fee of Rs.3 lacs was agreed upon. The respondent is said to have signed the vakalatnama and handed over a sum of Rs.50,000/- in cash on 23.10.2015. He is also said to have handed over a cheque drawn on ICICI Bank for a sum of Rs.2.50 lacs as remaining professional fee. The plaintiff/petitioner states that when he presented the cheque on 29.10.2015, the same was returned with the remarks “Non CTS.” The cheque was presented again and was dishonoured with the remarks “payment stopped by drawer.” A legal notice is said to have been sent on 21.11.2015 under Section 138 of the Negotiable Instruments Act. Based on this, the present suit was filed.

3. The trial court by the order dated 21.07.2016 concluded that the respondent has been served by speed post and registered AD on 29.04.2016 and 02.05.2016 respectively and has not entered appearance within the prescribed period of 10 days. It notes that in such an event, a decree should follow in favour of the petitioner. It further notes that a cheque is bill of exchange and a suit based on a bill of exchange would be maintainable under Order 37 CPC. It also notes that there is a presumption under Section 118 and Section 139 of the Negotiable Instruments Act that unless contrary is proved, a holder of a cheque received a cheque for discharge in whole or in part of any debt or any liability and the same was made or drawn for a consideration. This presumption of course is rebuttable, it further states.

4. The court thereafter noted two other facts. Firstly, that the bill issued by the petitioner for fee on 23.10.2015 is for Rs. 3 lacs whereas the cheque is for Rs.2.50 lacs. It secondly noted that the bill is a computer generated document and is not supported by any receipt or acknowledgment of the respondent and is filed without a certificate under Section 65 B of the Indian Evidence Act. Noting these stated infirmities in the case of the petitioner, the trial court concluded that the suit cannot be decreed under Order 37 CPC and the petitioner would have to lead evidence. Ignoring the fact that service has already been affected on the respondent, the trial court issued fresh summons to the respondent.

5. Learned counsel for the petitioner has relied upon the judgment of this court in the case of M/s Jindal Aromatics vs. M/s South Coast Spices Exports Pvt. Ltd. AIR 2004 Delhi 8 to contend that in the present facts, a decree would necessarily have to follow and the impugned order is erroneous.

6. Order 37 Rule 2 CPC reads as follows:-

“2. Institution of summary Suits.-(1) A suit, to which this Order applies, may, it the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain —

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;

(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:—

(Under Order XXXVII of the Code of Civil Procedure, 1908).”

(2) The summons of the suit shall be in form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appear