CHANDAN SINGH Vs. DEVARAM KUMAWAT

JUDGEMENT

(1.) This appeal by defendant under Sec.96 of the Civil Procedure Code challenges the judgment and decree dated 25.11.2005 passed by Addl. District Judge (Fast Track) No.1, Pali in Civil Original Suit No. 44/2005 (Devaram Kumawat Vs. Chandan Singh) rejecting the application of defendant filed under Order 37 Rule 3(5) CPC and decreeing the suit for recovery of Rs.55,000/- with interest @ 6% per annum.

(2.) The plaintiff-respondent filed the suit for recovery against defendant-appellant under Order 37, CPC inter-alia stating that machineries and other items worth Rs.1,75,000/- were sold to his proprietorship firm M/s. Kiran Cement Industries by the defendant and concerning that deal an agreement was executed by defendant Chandansingh on 07.04.2003 to that effect but as the defendant required those items again, he repurchased the same at the cost of Rs.175,000/- from the plaintiff and in lieu thereof issued four cheques in favour of plaintiff Deva Ram, however, on presentation of one of the cheques for collection on 01.01.2005 for an amount of Rs.55,000/-, the same was returned unpaid on account of insufficient funds in the account of the defendant. The plaintiff further stated in the plaint that a legal notice was sent to the defendant on 19.01.2005 demanding payment of the dishonoured cheque amounting to Rs.55,000 but it was not made to him and thereby the defendant deliberately and mischievously cheated him. The plaintiff, in addition to other prayers, made prayer for decreeing the suit against defendant for the said amount and interest thereon.

(3.) The case, as has been set up by the appellant-defendant in the present appeal, is that the trial Court issued summons of the suit but as he was out of station, same could not be served upon him and he came to know of it only when he returned back that on 16.05.2005 the Process Server of the Court came with notice and thereafter he immediately inquired into the matter and moved an application under Order 37 Rule 3(5) CPC praying for leave to defend the suit to which reply was by filed by the plaintiff on 09.08.2005 contending that the defendant had not complied with the provisions of Order 37 Rule 3(1) CPC, and thereafter the learned trial Court after hearing the parties on 25.11.2005 rejected the application and decreed the suit for recovery.