CHERRY AGARWAL Vs. OMPRAKASH GUPTA

JUDGEMENT

(1.) The defendant in the suit filed under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter refereed to as "the Code") has filed this application praying for leave to enter appearance in the suit after condonation of delay of 119 days.

(2.) It is, however, urged by the defendant that the suit filed by the plaintiff cannot be a summary suit under Order XXXVII of the Code. The plaintiff has filed the suit for recovery of loan under Order XXXVII of the code on the basis that she made payment of the loan amount to the defendant by a cheque. In paragraph 4 of the plaint the plaintiff has claimed to have lent and advanced a sum of Rs.10 lakh to the defendant vide cheque no.DJ2143967 dated June 15, 2015 drawn on Kotak Mahindra Bank, Kali Krishna Tagore Street. According to the defendant, from a bare reading of the plaint filed in the suit, a copy whereof has been disclosed in this application, it is evident that the plaintiff's claim against the defendant is for recovery of accommodation loan granted by the plaintiff to the defendant. It is submitted by the defendant that in the body of the plaint there is no whisper that the plaintiff had advanced the said loan of Rs.10 lac to the defendant on a written contract and, as such, the suit filed by the plaintiff cannot be treated as a summary suit under Order XXXVII of the Code only on the ground that the plaintiff paid the loan amount to the defendant by cheque. In this regard, the defendant relies on the Single Bench decision of the Bomaby High Court in the case of Purnima Jaitly vs. Ravi Bansi Jaisingh, 2004 1 MhLJ 114. In the said case a learned single Judge of the Bombay High Court held that it is only when the plaintiff's claim in a money suit is based on a cheque drawn in his favour by the defendant, the suit become a suit on a bill of exchange and the plaintiff can maintain such suit under Order XXXVII of the Code.

(3.) It is contended that when the suit filed by the plaintiff in this case cannot be treated as a summary suit under Order XXXVII of the Code, the defendant is not required to comply with the other provisions of Order XXXVII of the Code for filing its defence. It is further submitted that in any event, the delay of 119 days in entering appearance in the suit by the defendant was not intentional and the same was for reasons beyond the control of the defendant. Thus, the defendant petitioner prays for an order allowing him to enter appearance in the suit.