BAYERISCHE HYPO UND VEREINSBANK AKTIENGESELLSCHAFT HRB 42148 MUNICH MUNCHEN FEDERAL REPUBLIC OF GERMANY Vs. STATE BANK OF BIKANER AND JAIPUR BELANGANJ AGRA

JUDGEMENT

(1.) D. K. Seth, J. The defendant No. 3 in a suit presented under Order XXXVII of the Code of Civil Procedure has chal lenged the impugned order dated 28th May, 1999 passed by the learned Addition al Civil Judge (Senior Division) Vth Court, Agra passed in Original Suit No. 793 of 1998. Mr. Prabodh Gaur, learned Counsel for the revisionist contends that the defendant No. 3 has raised an objec tion under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure and contended that the plaint should have been rejected since the plaint did not dis close any cause of action as against defen dant No. 3. His next contention is that the suit cannot be maintained within the scope and ambit of Order XXXVII since it is not a suit up Bill of Exchange, hundies or Promissory Note. He also contends that the plaint does not disclose any written contract as between the plaintiff and the defendant No. 2 nor does it disclose that the amount is due on an enactment or is based on any guarantee so far as the defen dant No. 3 is concerned. He has referred to the plaint and had pointed out that there is nothing which disclose any cause of action as against the defendant No. 3, within the four corners of the pleadings made out in the plaint. According to him, there was no contract between the plaintiff and the defendant Nos. 1 and 3 and he had relied upon various provisions of Contract Act as well as commentaries by Anson, and that by Cheshire and Fifoot to which reference shall be made at appropriate stage, if necessary. He has also addressed the Court on merit of the case as has been pleaded in the plaint and has also referred to the defence which he had elaborated in order to impress the Court that even on merits, the suit cannot survive. On these grounds he contends that the impugned order can not be sustained and the plaint ought to have been rejected under Order VII, Rule 11 of the Code or should have been returned under Order VII, Rule 10 since it was not maintainable under Order XXXVII of the Code.

(2.) MR. Murlidhar, learned Counsel for the plaintiffs assisted by Dr. Dilip Gupta on the other hand contends that after the impugned order was passed, the defendant had filed its defence and sought for leave to defend the suit upon condona tion of delay. In the said defence the grounds which are now being set-up in support of the application under Order VII, Rule 11, read with Section 151 of the Code since been decided by the impugned order, have also been incorporated as defence to the suit itself. Therefore, ac cording to him, the question remains still open to be agitated by the defendant if leave is so granted. He had also taken a preliminary objection to the extent that if the plaint could have been rejected under Order VII, Rule 11 or could have been returned under Order VII, Rule 10 by the Court without any intervention by the defen dant, then it would not have been a defence within the meaning of sub-rule (5) of Rule 3 of Order XXXVII of the Code, which is bound to present within 10 days from the date of service. But as soon the said objection is raised by the defendant, it would become a defence within sub-rule (5) of Rule 3 of Order XXXVII of the Code. If it is so, then it would attract the mischief of sub-rule (5) unless a leave is obtained from the Court.

(3.) ORDER XXXVII of the Code is a summary procedure, which lays down the procedure in which a suit under ORDER XXXVII is to be proceeded with. In Rule 1, it prescribes as follows:- "1. Courts and classes of suits to which the ORDER is to apply- (1) This ORDER shall apply to the following Courts, namely :- (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) other Courts: Provided that in respect of the Courts referred to. in clause (b), the High Court may, by notification in the official Gazette restrict the operation of this ORDER only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this ORDER as it deems proper. (2) Subject to the provisions of sub-rule (1), the ORDER applies to the following classes of suits, namely:- (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt of liquidated demand in money payable by the defendant, with or without inter est, arising, (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. "