SUSHIL KUMAR GAUBA Vs. ADARSH KUMAR GUPTA

JUDGEMENT

(1.) Petitioner Sushil Kumar Gauba has filed this revision petition against Adarsh Kumar Gupta respondent under Article 227 of the Constitution of India for setting aside the impugned order dated 21.08.2012 passed by learned Civil Judge (Junior Division), Gurgaon, whereby learned trial Court has treated the suit under Order 37 CPC of the petitioner as ordinary suit for recovery. Notice of motion was issued and respondent appeared through counsel and contested the petition.

(2.) From the record and specially from the impugned order, I find that the case was fixed for the consideration on application for granting leave to defend to the defendant. At this stage, it came to the knowledge of the Court that present suit is not maintainable in the present form as Order 37 CPC specifically deals with the suits based upon bill of exchange, hundies and promissory notes. As per the pleadings set up in the plaint by the plaintiff, the plaintiff advanced loan to defendant through cheque and defendant had failed to repay the loan amount. It is held by learned Civil Judge (Junior Division) that it is nowhere the case of the plaintiff that repayment has been made on the basis of bill of exchange, hundi and promissory note. Therefore, plaintiff is entitled to file an ordinary suit for recovery and suit filed by the plaintiff under Order 37 CPC was treated as ordinary suit for recovery and defendant was given opportunity to file the written statement.

(3.) The perusal of the record and impugned order further shows that impugned order is correct and as per law. The plaintiff has advanced loan by way of cheque and no loan has been repaid by the defendant as per the plaintiff's case. It is nowhere plaintiff's case that loan amount has been repaid by way of cheque etc.