Office Notes,

reports, orders or proceedings

SL.

Date or directions COURT’S OR JUDGE’S ORDERS

No.

and Registrar’s

order with Signatures

CLR/ 96/ 2025

Hon'ble Rakesh Thapliyal, J.

1. Mr. Yogesh Upadhyay, learned

counsel for the revisionist.

2. The instant revision has been preferred by the revisionist against the order dated 30.08.2025 whereby the application moved by the revisionist being defendant in O.S. 119 of 2025, under Order VII Rule 11 of CPC, , has been

rejected.

3. Learned counsel for the revisionist argued that that specific plea has been taken by the revisionist/defendant on an application moved under Order VII Rule 11 of CPC that there is no disclosure about the 138 N.I. Act proceedings in the plaint and even there is no reference of the cheque and without any cause of action the suit has been instituted for recovery of the amount due. Apart from this, another plea which has been taken in the application, moved under Order VII Rule 11 of CPC, is that for the purposes of the amount for which the recovery suit has been filed, the respondent/plaintiff filed complaint under Section 138 of the N.I.

Act, therefore, suit is not maintainable.

4. This Court is not convinced with the arguments of the learned counsel for the revisionist, since, the proceeding under Section 138 of N.I. Act is nothing but a penal proceeding to examine whether the offence punishable under Section 138 of N.I. Act is made out or not, therefore, the proceeding under Section 138 of N.I. Act is entirely different to the relief as sought the nature of the relief, as sought, in both the proceeding are entirely different, since, the Recovery Suit bearing O.S. No. 119 of 2025, was instituted by the

respondent/ plaintiff for the purposes of the recovery, therefore, this Court is of the firm opinion that the plea as taken under Order 7 Rule 11 of CPC that the suit is barred by law, since, the respondent/ appellant availed the remedy by initiating the proceeding under Section 138 is thoroughly misconceived and rejected.

5. Lastly, the counsel for the revisionist submits that the revisionist/defendant could not file the written statement, therefore, in such an eventuality, the liberty may be given to the revisionist to file written statement within the time period fixed by this Court and also requested that all pleas, as taken in the application under Order VII Rule 11 of CPC, be also permitted to be pleaded in the written statement.

6. The submission as advanced by leaned counsel for the revisionist, for giving time to file written statement with additional plea which was taken in the application moved under Order VII Rule 11 of CPC, for substantial justice, found some substance.

7. In view of the above, the instant civil revision is disposed of with the liberty to the revisionist to file written statement by taking additional plea which he has taken in the application moved under Order VII Rule 11 of CPC positively within 15 days from the date of obtaining the certified copy of this order.

8. It is further made clear that if the revisionist avail such remedy and file written statement within aforesaid period, the Trial Court may proceed for expediting Saurabh Saxena vs. Saurabh Kumar, in accordance with law.

(Rakesh Thapliyal, J.)

22.09.2025 Parul