RAJESH BANSAL Vs. ANSAL HOUSING CONSTRUCTION LIMITED

JUDGEMENT

(1.) The plaintiff, above named, filed a suit for recovery of Rs.20,90,000.00 alongwith interest pendentelite and future thereon at the rate of 24% per annum against the defendant. It is alleged that defendant a well known construction company, published brochure in October, 1996 showing the lay out of "Shopping-cum-office complex" by name "TRADE SQUARE :. Plaintiff accordingly applied for a office-cum-shop space in the proposed complex. During the period from November, 9 6/01/2000 plaintiff deposited a sum. of Rs.10,70,168.00 with defendant company although he was required to deposit only a sum of Rs.9,47,340/-. In November, 2000 plaintiff visited the site where the proposed complex was to come up and noticed that after completing one-end-corner of the complex, construction activities come to a stand still. Then in December, 2000 plaintiff sent a notice of demand asking refund of amounts deposited by him with interest. Under the terms and conditions, plaintiff is entitled to interest at the rate of 24% per annum. Thus the total amount recoverable from the defendant company comes to Rs.20,90,000/- till the date of filing of -the suit. The suit has been filed under the provisions of Order 37 Code of Civil Procedure as the plaintiff seeks to recovers liquidated demand in money payable by defendant with interest, asking on a written agreement.

(2.) Initially summons for appearance were issued against the defendant in the prescribed form under Order 37 Rule 2(2) Code of Civil Procedure and defendant put in appearance within time prescribed.

(3.) Thereafter, the plaintiff filed an application being IA No. 418/2001 under Order 37 Rule 3(4) Code of Civil Procedure for summons for judgment and vide order dated 23/01/2001 this Court ordered issuance of summons for judgment in the prescribed form, returnable on 23/03/2001. It appears from the record that plaintiff first obtained "Dasti" summons for judgment and got it served on defendant's address on 29/01/2001. Thereafter, summons for judgment were also sent by ordinary process and the same were served on 28/02/2001. Defendant has now filed an application being IA NO. 2857/2001 under Section 151 Code of Civil Procedure challenging the validity of service of summons for judgment. It is alleged that on 28/02/2001 defendant company received summons from Process Server in the office of the defendant company by the Clerk. As per the notice, defendant company was directed to appear on 23/03/2001. IT is submitted that in the evening of 20th March, 2001 the defendant forwarded the said summons alongwith papers to Shri Sanjay Bajaj, Advocate. After examining the papers, "Shri SanJay Bajaj, Advocate informed the defendant company that the said process was actually summons for Judgement as prescribed under Order 37 Code of Civil Procedure but the same was not accompanied by the application for issuance of summons for Judgment and the affidavit verifying the cause of action, the amount claimed which are mandatory under the provisions of Order 37 Rule 3(4) Code of Civil Procedure. It is thus contended that service of summons for Judgment on 28/02/2001 on defendant company is in violation of provisions of Order 37 Rule 3(4) Code of Civil Procedure, therefore, it cannot be said to be valid service of summons for Judgment on the defendant. Plaintiff did not file reply to the application but learned counsel for the plaintiff made submissions opposing the application.