1989 Supreme(MP) 609

IN THE HIGH COURT OF MADHYA PRADESH
FAIZAN UDDIN, J.
Raipur Iron and Steel Works (M/s.) - Applicant
Versus
M/s. Simplex Engineering - Non-Applicant
C.R. No. 334 of 1987 (J)
Decided On : 17-03-1989

Headnote:(1) Civil Procedure Code, 1908 – O. 37 – summary procedure under – curtails normal defence available in general procedure – provisions have to be strictly construed.

       (2) Civil Procedure Code, 1908 – O. 37, R. 2 (b) (i) – documents not bilateral – no written contract – dishonoured cheque only for part consideration – no summary suit is maintainable.

        Short Note

       1. The plaintiff/non – applicant files a suit for recovery of Rs.1,25.600/ – towards price of goods alleged to have been supplied to the applicant defendant. The suit was filed under summary procedure prescribed under order 37 of the Code. The trial Court issued the summons to the defendant/applicant as prescribed under order 5, of the Code instead of the summons in Form No.4 of Appendix – A and Appendix – B as prescribed in sub – rule (2) of rule 1 of order 37 of the Code. The Court proceeded ex – parte against the applicant on 9 – 10 – 1986 as the applicant remained absent despite service of summons. The defendant/applicant, however, appeared in the Court on 20 – 4 – 1987 through counsel and made an application under order 37, rule 2 read with Order 7, rule 11 as well as section 151 of the Code, objecting the maintainability of the suit on the ground that the suit was not covered by the provision of order 37, rule 1 (2) of the Code nor the summons in Form No.4 of Appendix – B were served. The learned trial Judge rejected the said application by the impugned order which is under challenge in this revision.

       Held: It cannot be disputed that order 37, of the Code curtails the general procedure prescribed under the Code and contemplates summary procedure in respect of the trial of certain specified classes of suit with the object of speedy disposal. The essence of the summary suit is that the defendant is not entitled as of right to defend the suit as is the case for ordinary suit. It provides that within 10 days from the date of service of summons upon the defendant, he must apply for leave to defend and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the court may deem sufficient for granting leave to the defendant to appear and defend the suit. If no leave to defend is granted the plaintiff would be entitled to a decree. The object under the summary procedure is to prevent unreasonable obstructions by a defendant who has no defence to contest the suit. The classes of suits to which order 37 applies are enumerated in sub – rule (2).

       2. 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 above 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 (emphasis supplied). In the present case, on perusal of the plaint, a copy whereof has been filed by the plaintiff. I find that it has been no where pleaded that there was any written contract for supply of goods, the price of which was Rs. 1,25,600/ – . During the course of arguments at the bar, it was also not contended that there was any written contract between the parties for supply of any goods. It is, therefore, clear that there was no written contract between the parties as contemplated in clause (b) of sub – rule (2) of order 37 of the Code. The question, therefore, remains to be considered is whether the bill issued by the plaintiff in the name of the defendant/applicant for a sum of Rs. 1,00,000/ – and the declaration filed by the defendant before the Sales Tax Authorities put together will constitute a contract as contemplated in clause (b) of sub rule (2) of order 37 of the Code or not. It may be pointed out that the contract comes into an existence when one or more persons signify to another his willingness to do or to abstain from doing anything and the person to whom such a proposal is made signifies his assent thereto. To attract the application of summary procedure, there should be a written contract under order 37 (2) (b) (i) of the Code or at least the contract may be spelled out from the documents produced on record for the amount claimed in the suit. In the present case, the suit is for recovery of Rs. 1,25,600/ – whereas the said bill and declaration are for a sum of Rs. 1,00,000/ – and that too they are not bilateral documents so as to spell out a contract between the parties for supply of any goods. As regards the cheque for Rs. 25,000/ – which is said to have been issued by the defendant/applicant in favour of the plaintiff and which is said to be dishonoured, has not been filed on record. Even otherwise taking the said cheque into consideration and accepting it to be a bill of exchange, it does not represent the entire money for which the suit has been filed, but it relates only to a small part of the suit amount that is Rs. 25,000/ – and, therefore, it cannot be said that the suit for Rs.1,25,600/ – is based on the bills of exchange or arises on a written contract. That being so, the suit in question does not fall within any classes of suits which are covered by sub – rule (2) of order 37 of the Code. This summary procedure curtails the normal defences available to the defendant under the general procedure for ordinary suits and, therefore, the provisions contained in order 37 have to be strictly construed. AIR 1955 Born. 276 and AIR 1963 Cal. 36 distinguished. Revision allowed.