Rajiv Sahai Endlaw, J.

The question for adjudication is the maintainability of the suit under Order XXXVII of the CPC.

2. Though the Joint Registrar, on 29th November, 2018, treating the suit labeled as under Order XXXVII of the CPC, as one under Order XXXVII of the CPC, ordered summons for appearance to be issued and the defendant has entered appearance but when the plaintiff applied for issuance of summons for judgment, the Joint Registrar ordered the suit to be listed before the bench and the suit came up before this Court on 20th February, 2019 when the counsel for the plaintiff was unable to satisfy this Court of maintainability of the suit under Order XXXVII of the CPC and on his request, the suit was posted for hearing on the said aspect today subject to plaintiff paying costs of Rs.10,000/- to the defendant.

3. The counsel for the defendant states that costs have not been paid. The senior counsel for the plaintiff states that costs will be paid during the course of the day.

4. The senior counsel for the plaintiff has been heard.

5. The plaintiff has pleaded that, (i) the plaintiff agreed to enter into an agreement with the defendant to the effect "that the plaintiff would provide the raw gold to the defendant for the job of making jewellery and thereafter a majority portion of the jewellery would be given back to the plaintiff and some items will be kept at the store of the defendant for display and sale, out of which the plaintiff would be entitled to a part of the profits and cost of his raw gold"; (ii) on 17th October, 2017, vide Voucher No.01/17-18 signed by the plaintiff and the defendant, the plaintiff handed over 20 Kgs. pure raw gold to the defendant; (iii) in addition to the aforesaid Voucher, the defendant also signed an Order dated 17th October, 2017 which bears the complete list/description of the gold given by the plaintiff and the description of the jewellery to be made by the defendant; (iv) as per the terms and conditions agreed between the plaintiff and the defendant, the defendant assured and undertook to make and deliver the jewellery/articles to the plaintiff by 17th November, 2017; (v) the defendant also issued a receipt dated 17th October, 2017 acknowledging receipt of gold; (vi) the defendant, in addition to the aforesaid receipt, also handed over a post dated cheque in favour of the plaintiff dated 17th January, 2018 for an amount of Rs.6 crores as a Performance Guarantee; (vii) the defendant failed to deliver the jewellery/articles to the plaintiff on 17th November, 2017 or thereafter inspite of repeated requests and follow up of the plaintiff; (viii) after waiting for more than a month, the plaintiff asked the defendant to return the raw gold and already made jewellery articles but the defendant refused; (ix) on 18th December, 2017, the plaintiff lodged a criminal complaint against the defendant of the offence of cheating before the Economic Offences Wing of Delhi Police; (ix) on 11th April, 2018, the plaintiff, "in order to recover some amount from the defendant" presented the cheque for Rs.6 crores "given by the defendant as an assurance/performance guarantee to the plaintiff" but the said cheque was dishonoured with the endorsement "payment stopped by drawer"; (x) the value of the gold out of which the jewellery/articles were to be made by the defendant was approximately Rs.5,98,40,000/- as per the prevailing rate of gold in the open market on the date of delivery of gold; however, the defendant has categorically admitted his debt to the tune of Rs.5 crores in his application for anticipatory bail; (xi) "from the application made by the defendant before the Hon'ble Sessions Court it is evident that the defendant is liable to pay at least at sum of Rs.5,00,00,000/- (Rupees Five Crores Only) which the defendant is avoiding to pay"; (xii) further, the defendant is liable to pay a total of Rs.6,00,00,000/- (Rupees Six Crores Only); and, (xiii) "the plaintiff has approached this Hon'ble Cou