KHERA HANDLOOM SUPPLY Vs. O B EXPORTS

JUDGEMENT

(1.) Plaintiff filed a suit under Order 37 of the Code of Civil Procedure (hereinafter called "the Code") against the defendants for recovory of Rs. 1,50,502/10 P. with costs of the suit and pending and future interest at the rate of 18% per annum from the date of the suit till realisation of the decretal amount. Defendants were served with the summons and they put io appearance through Sh. B.L. Anand Adovcate within ten days of the service. Thereafter sommons for judgement were issued against the defendants J,A. No. 674/87 wa also-moved on behalf of the plaintiff praying that defendants may be allowed to be served through their counsel and that they may be given dasti notice for service of the defendants through their counsel. The application was allowed by the Deputy Registrar. It led to the filing of 1.A. Mo. 719/87 on behalf of the defendants staling that the address for service of notice/summone on them at their residential address had been given and therefore the summons under Order 37 of the Code should be served upon the defendents themselves and not through their counsel. The order dated 6th February, 1987 recorded by the Deputy Registrar while passing order in this IA No. 719/87 shows that actually the service had been effected on the defendants by the Process Server at their residence on 20th October, 1986 under <PG>338</PG> Order 37, Rule 3(2) of the Code. And since leave to defend application had not been filed- on behalf of the defendants, no farther orders were necessary in respect of 1A No 719/87.

(2.) The matter was then listed before Charanjit Talwar, J. on 24-4-1987. His Lordihip did not see any reasoB to differ with the order of the Deputy Registrar holding that the defendants were properly served. The Hon'ble Judge was further of the view that if at. all the defendants felt aggrieved by the order of the Deputy Registrar, they were at liberty to file an appeal against the said order under Rule 4 of Chapter II of Delhi High Court (Original side) Rules. But nd such appeal was filed. At that point of time Mr. Anand, learned counsel for the defendants submitted that on the plaintiff's own showing i.e. on, perusal of the plaint itself it was clear that the plaint ought not to have been entertained under Order 37 of the Code. Therefore, he requested some time to address arguments on this aspect of the matter, it then appears that a review application No. 10/87 was also moved OB behalf of the defendants seeking review of the order dated 24-4-1987 of Talwar, J but the same was dismissed as withdrawn. Later on it further appears that a contention was raised on.behalf of the defendants that in the instant case the plaint under Order 37 of the Code did not comply with the mandatory provisions of Order 37, Rule 2 (1) & iC) of the Code This point was referred by B N. Kirpal, J. to Hon'ble the Chief Justice for constituting a larger Bench. Vide yudgment dated 4th April 1989 it was held by a Division Bench comprising of BN. Kirpal, J. and Y.K. Sabharwal. J. that though the provisions of Order 37 Rule2 (1) are mandatory in nature but if there has been substantial compliance of the same, then the plaint will be regarded as being under Order 37. Therefore, in sum and substance there having been substantial compliance with the provisions of Order 37 of the Code, the plaint in this case was deenard to have been filed under Order 37 of the Code.

(3.) At no stage of the case the defendants came forward with any application for leave to defend the suit It was then urged before G.C Jain, J. on behalf of the defendants that besides the point decided by the Devision Bench the suit was not maintainable under Order 37 of the Code for other reasons also The defendants were directed to file an affidavit taking all their pleas regarding the non-maintainability of the suit under Order 37 of the Code An affidavit in this respect has been filed of sh, Balbir Singh, defendant No. 2. The basic contention raised by this affidavit is that there was no agreement written or oral in respect of the payment of interest at the rate of 18% per annum by the deponent and no such agreement bad been pleaded in the plaint. Therefore, in the absence of any such agreement the suit was not maintainable under Order 37 of the Code In view of this fact the suit did not fall within the ambit of Order 37 Rule 2 and the averment in this respect in the plaint was manifestly wrong Another ground raised was that the defendants were not properly served with summons and it was actually a mistake on the part of the cours to' have held that they were served on 20-1086. The third point raised by way of this affidavit is that Sh. Balbir Singb defendant No 9 was the sole proprietor oi ihe firm defendant No 1 and delendant No. 3 had no concern whatsoever with defendant No. I and. therefore, she bad been Wrongly impleaded.