Delhi High Court
Sh. Prahlad Swaroop Aggarwal vs Baldev Singh on 16 March, 2012
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 16.03.2012
+ C.R.P. No.310/2005 & CM Nos.15855/2007
SH. PRAHLAD SWAROOP AGGARWAL ..... Petitioner
Through: Petitioner in person.
versus
BALDEV SINGH ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This petition has challenged the order dated 10.02.2004 vide which the review petition filed by the petitioner/plaintiff seeking a review of the order and judgment dated 16.12.2003 had been dismissed. 2 Record shows that the present petitioner had filed a suit for recovery of Rs.6,000/- against the defendant. Contention was that he had extended a friendly loan of Rs.1,000/- which was on 26.10.1988; Rs.2,000/- was advanced on 31.10.1988 at the interest rate of 3% per CRP No. 310/2005. Page 1 of 5 month. The defendant executed a loan receipt of 31.10.1988 and pronote on the receipt of 26.10.1988; inspite of repeated demands, amounts were not paid; suit was accordingly filed. This was a suit under Order XXXVII of the Code of Civil Procedure (hereinafter referred to as the 'Code').
3 The defendant had put in his appearance but leave to defend was not filed within the stipulated period.
4 The petitioner in order to prove his case has relied upon the aforenoted two documents i.e. receipt dated 26.10.1988 and the loan receipt dated 31.10.1988. The first document is a promissory note of Rs.1,000/- with interest at 3% per month; the second document is a receipt sent by the defendant which states that he has taken Rs.2,000/- from Prahlad Swaroop in cash at the rate of 3% interest per month 5 The trial Court had decreed the suit only for the amount of Rs.1,000/-; it was of the view that the promissory note executed for the aforenoted sum falls with the parameters of Order XXXVII of the Code; a receipt purported to have been executed by the defendant would not fall within the parameters of Order XXXVII of the Code; suit was decreed only for the sum of Rs.1,000/- along with interest. CRP No. 310/2005. Page 2 of 5 6 This judgment was the subject matter of the review; the Court was of the view that no review was called for and since the second document of the plaintiff is a receipt dated 31.10.1988, Order XXXVII of the Code is not maintainable on the basis of this receipt. The Court was also of the view that the claim of the plaintiff was time barred. 7 Record shows that the present suit had been filed by the plaintiff on 26.10.1991. There are two documents which have been relied upon by the plaintiff to substantiate his claim; he had obtained a part decree qua the first document which was dated 26.10.1988; his claim qua the second document i.e. document dated 31.10.1988 had been dismissed for the reason that it was a time barred claim. This finding is patently incorrect; the second document is dated 31.10.1988 and the suit filed on 26.10.1991 was well within the period of limitation i.e. three years from the receipt of the document. The impugned judgment holding that the review petition is not maintainable as the claim on the document dated 31.10.1988 was time barred suffers from an infirmity. The second reason for rejection of the claim is that a receipt does not fall within the parameters of Order XXXVII of the Code. A receipt also comes within the scope of Order XXXVII of the Code; the Trial Judge had erred in CRP No. 310/2005. Page 3 of 5 holding that the receipt does not fall within the domain of a suit under Order XXXVII of the Code.
8 In a judgment of a Bench of this Court reported in 1982 (1) ILR (Delhi) 320 Suhila Mehta Vs. Bansi Lal Arora this aspect had come up for consideration and it was noted that the payment by the plaintiff as application money and its acceptance by the defendant constitutes a contract; it may be labeled as a receipt; it does not mean that it is not a contract; there was a promise; there was a consideration; there was an acceptance; all the elements essential for the formation of the contract being present thus falling with the parameters of a suit under Order XXXVII of the Code.
9 The impugned judgment had dismissed the review petition on wrong parameters; the error was apparent on the face of the record; the receipt being a contract did come within the parameters of a suit under Order XXXVII of the Code; this receipt was dated 31.10.1988; suit was filed on 26.10.1991 which was also within the limitation; no leave to defend had been filed; the plaintiff was entitled to a decree on the second document as well. Both the documents contained the element of interest; suit is accordingly decreed in the sum of `6,000/- along with CRP No. 310/2005. Page 4 of 5 pendente lite and further interest @ 9% per annum till realization.
Petition disposed of.
INDERMEET KAUR, J MARCH 16, 2012 A CRP No. 310/2005. Page 5 of 5