Delhi District Court
Jitender Yadav vs Pawan Kumar Sharma on 7 October, 2024
IN THE COURT OF SHAIL JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Suit Under Order XXXVII CPC
CS No. 336/24
Sh. Jitender Yadav
S/o Late Sh. K.R.Yadav
R/o H. No. 65-A, Kishan Kunj Extn.
Part-I, Laxmi Nagar,
Delhi-110092. ..... Plaintiff
Versus
Sh.Pawan Kumar Sharma
S/o Sh. Mahender Pal Sharma
R/o 1/2953-B, Post Office Street
Ram Nagar Extn., Shahdara,
Delhi-110032. .......Defendant
Date of Institution : 05.07.2024
Date of judgment : 07.10.2024
ORDER
1. Vide this order, I am deciding an application under Order XXXVII Rule 3 CPC as filed by the defendant alongwith an application under Section 5 of the Limitation Act.
2. Briefly stating facts of the present suit are that plaintiff and defendant were having friendly relations and in October, 2022, the defendant requested to advance him a friendly loan of CS No. 336/24 Jitender Yadav vs. Pawan Kumar Sharma Page No. 1 / 5 Rs.3,50,000/-. The plaintiff arranged and gave loan of Rs.3,50,000/- to the defendant through bank transfer. The defendant had promised to return the said loan within 6 months. When plaintiff asked the defendant to return the loan amount, defendant issued a cheque bearing no. 476476 dated 08.09.2023 for an amount of Rs.3,50,000/- drawn on Canara Bank, Nirman Vihar Branch, Delhi-110092. When the plaintiff presented the said cheque to his banker, same was dishonoured vide cheque returning memo dated 12.09.2023 with the remarks 'funds insufficient'. Plaintiff informed the defendant regarding dishonour of cheque, defendant assured to return the said loan amount in January 2024 but after that, he refused to return the same and also, threatened the plaintiff that he would implicate him in false cases. Hence, plaintiff has filed instant suit under Order XXXVII CPC for seeking recovery of Rs.3,50,000/- from the defendant along with pendente lite and future interest @ 24% per annum.
3. Summons for appearance of the suit in prescribed Form 4 Appendix B of CPC were issued to the defendant and same were served on Ms. Kanti Devi, mother of the defendant on 12.07.2024. Within 10 statutory days, defendant has not filed any appearance in the Court.
4. Appearance was filed by the defendant only on 08.08.2024 by way of application under Order XXXVII Rule 3 CPC r/w Section 151 CPC alongwith an application for condonation of delay under Section 5 of the Limitation Act.
5. Ld. Counsel for the plaintiff has not filed any reply to the CS No. 336/24 Jitender Yadav vs. Pawan Kumar Sharma Page No. 2 / 5 application under Section 5 of the Limitation Act and straightway submitted the arguments.
6. I have heard the arguments of Ld. Counsels for both the parties on the application under Section 5 of the Limitation Act and perused the record.
7. An application under Order XXXVII Rule 3 CPC r/w Section 151 CPC has been filed by the defendant alongwith an application for condonation of delay. The reason mentioned in the application for non-filing of the appearance, within 10 statutory days, as required as per Order XXXVII CPC, is that the service was effected on the mother of the defendant and in the application under Section 5 of the Limitation Act for condonation of delay, it is stated by the defendant that the mother of the applicant/defendant herein is of unstable mind. However, no such document is placed on record. Further, from the perusal of the report on summons, it is clear that mother of the defendant had talked with the defendant at the time of service of summons, on his mobile and only after talking with the defendant and understanding the requirement of process, she has accepted the summons. Therefore, I am of the opinion that defendant had due knowledge of the process under Section XXXVII CPC so there is no ground for condonation of delay. Hence, the present application for condonation of delay is dismissed. Application of the defendant under Order XXXVII Rule 3 CPC r/w Section 151 CPC is also dismissed.
8. Since the defendant has failed to file appearance within 10 days of service of summons of the suit, the plaintiff is entitled to CS No. 336/24 Jitender Yadav vs. Pawan Kumar Sharma Page No. 3 / 5 decree of the suit forthwith as allegations in the plaint are deemed to be admitted.
9. As per provision of Order XXXVII Rule 2 Sub Rule 3 CPC, which provides for passing of a decree in default of his entering appearance within 10 days of service is reproduced hereinunder :
"(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."
10. In the present case, admittedly, defendant has been served with summons of the suit through his mother on 12.07.2024 and appearance was not filed by him, within 10 statutory days. Therefore, allegations in the plaint are deemed to be admitted by the defendant and plaintiff is entitled for a decree of the cheque amount together with interest.
11. Plaintiff has placed on record the original cheque for an amount of Rs.3,50,000/-, photocopy of cheque returning memo and his Aadhar Card. Thus, I am of the opinion that plaintiff is entitled to recovery of Rs.3,50,000/- from the defendant.
12. Plaintiff has claimed loan amount i.e. Rs.3,50,000/- along with interest @ 24 % per annum. No document has been placed on record by the plaintiff to claim interest @ 24% per annum, in case the defendant fails to pay the loan amount. Considering the CS No. 336/24 Jitender Yadav vs. Pawan Kumar Sharma Page No. 4 / 5 facts and circumstances of the case, ends of justice would be met if interest @ 8% per annum is also allowed.
13. In view of foregoing discussion, present suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand Only) with pendentlite and future simple interest @ 8% per annum. Cost of the suit is also allowed. Decree sheet be prepared accordingly.
File be consigned to Record Room.
SHAIL Digitally signed
by SHAIL JAIN
Date: 2024.10.07
JAIN 16:43:00 +0530
Announced in the open court (SHAIL JAIN)
today on 7th October, 2024 Principal District & Sessions Judge
East, Karkardooma Courts, Delhi
CS No. 336/24 Jitender Yadav vs. Pawan Kumar Sharma Page No. 5 / 5