SATISH CHAND Vs. BAL KISHAN

JUDGEMENT

(1.) This first appeal under Order 43 (1)(d) of the Code of Civil Procedure, 1908 (CPC) is filed challenging the order of the court below dated 24.3.2017 by which the application under Order 9, Rule 13 Civil P.C. of the appellant/defendant has been dismissed. It may be noted that the application was filed under Order 9, Rule 13 Civil P.C. but since the suit was filed under Order 37 CPC, the court below has rightly treated the application under Order 37, Rule 4 Civil P.C. instead of being under Order 9, Rule 13 CPC.

(2.) The facts of the case are that the respondent/plaintiff filed a suit under Order 37 Civil P.C. against the appellant/defendant for recovery of a sum of Rs.9,76,000.00 along with interest. The recovery suit was filed inasmuch as the respondent/plaintiff had given a friendly loan of Rs. 8 lacs to the appellant/defendant. The loan transaction is reflected in the receipt/ikrarnama dated 25.12.2012, and on the basis of which the suit under Order 37 was filed.

(3.) This suit under Order 37 Civil P.C. was decreed on account of the fact that the appellant/defendant, in spite of service, failed to enter appearance. The suit was decreed in terms of the order dated 8.7.2015 and which order reads as under:- " Order dated 8.7.2015 Present: Plaintiff in person with Sh. Rupesh Kumar, advocate None for defendant despite at least three calls till 2:16 pm. The counsel for plaintiff has pointed out that summons for appearance sent to the defendant for 29-04-2015 at Mathura address were refused by the defendant in the presence of witnesses whose names have been recorded in the report and that photograph of the affixation has also been taken. The refusal and affixation are dated 12-3-2015. I have also found that summons for appearance sent to the defendant at Mathura address for 15-10-2014 by RCAD were also received back with the report of refusal by defendant on 07-06-2014. The defendant is held to be served on 12-03-2015. No appearance has been filed by the defendant till date. The period of ten days prescribed u/o 37 Civil P.C. for filing appearance has expired long back. Hence, as per Order 37, Rule 2 (3) CPC, the allegations in the plaint are deemed to be admitted by the defendant and the plaintiff is entitled to decree prayed for. Arguments heard. Record perused. The suit is based on one agreement/receipt dated 25-12-2012 which has been placed on record at pages no.14-15 of the file and hence is covered u/o 37 CPC. The amount was taken by the defendant from the plaintiff at Delhi within the jurisdiction of this Court. Hence, this Court has the territorial jurisdiction to entertain and try the present suit. The suit is within limitation. The rate of interest sought by the plaintiff is as per agreement/receipt and the same does not appear to be exorbitant. In view of the above discussion, the suit is allowed. A decree of Rs.8 lacs with pendente-lite and future interest @ Rs.24% per annum from today till realization with cost is passed in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to Record Room."