Delhi District Court
Rakesh Kumar vs Amit Chopra on 9 January, 2020
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
C.S. DJ ADJ No.: 1243/2018
CNR No.: DLSW010202862018
IN THE MATTER OF:
Rakesh Kumar
S/o Late Ratan Singh
R/o RZ-2, Gali No.1
Durga Part New Delhi ... Plaintiff
Versus
Amit Chopra
S/o Ashok Chopra
R/o A-6/18, Paschim Vihar
New Delhi ... Defendant
Date of institution of the plaint : 12.12.2018
Date of reserving the order/judgment : 09.01.2020
Date of pronouncement of order/judgment : 09.01.2020
ORDER
09.01.2020
1. The plaintiff, namely, Rakesh Kumar (hereinafter "plaintiff") has preferred a summary suit for recovery of ₹3,40,000/- (Rupees CS DJ ADJ No. 1243/2018 Page 1 of 5 Three lakhs forty thousand only) along with pendente lite interest and future interest against the defendant, namely, Amit Chopra (hereinafter "defendant") under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC").
2. On 21.12.2018 the summons of the suit under Order XXXVII, CPC were issued by the Court to the defendant returnable for 19.02.2019. As per service report, on 19.02.2019 the service of summons was effected upon defendant through one girl namely, Eshika Chopra (niece of the defendant). Subsequent to 19.02.2019, no appearance was filed on behalf of the defendant within the prescribed period. On 07.05.2019 notice was issued to the concerned process server who effected service upon the defendant. The statement of the process server was recorded on 04.07.2019 and the defendant was proceeded ex parte.
3. On perusal of the case record it is observed that on 04.07.2019, the matter was adjourned for ex parte evidence for 12.09.2019. This Court vide order dated proceeded the defendant ex parte, as the defendant despite service through his family member on 21.12.2018 failed to file appearance within the prescribed period. This Court observes that the present suit is a summary suit for recovery of ₹3,40,000/- (Rupees Three lakhs and forty thousand only) preferred by the plaintiff against the defendants under Order XXXVII, CPC, on the basis of two cheques. With the defendant having failed to file CS DJ ADJ No. 1243/2018 Page 2 of 5 appearance within the prescribed period from the date of service of summons i.e. 22.12.2018, as per Order XXXVII, CPC, the plaintiff was entitled to judgment on 04.07.2019, the date when the statement of the process server was recorded and this Court held the service upon the defendant as effected and the defendant was proceeded ex parte. However, this Court on 04.07.2019 inadvertently adjourned the matter for ex parte evidence 12.09.2019, and thereafter, the mater was adjourned for ex parte evidence on 09.01.2020. This Court did observe. The plaintiff did lead ex parte evidence on 09.01.2019 and
4. The position in law is well settled on the bedrock of the maxim actus curiae neminem gravabit i.e. an act of Court shall prejudice no man, and particularly mistake apparent on the part of the Court - See Bhagwati Developers Private Limited v. Peerless General Finance Investment Company Limited & Ors.1 This Court finds and rules that with no appearance on record on behalf of the defendant within the prescribed period, as per the mandate of Order XXVII, Rule 3(1), CPC, the plaintiff is entitled for judgment under Order XXXVII, Rule 2(3), CPC and the matter ought not to have been adjourned for ex parte evidence.
5. As per the provision of Order XXXVII, Rule 2(3), CPC, the prescribed period to file appearance for defendant is 10(ten) days and in the present case the same lapsed a while ago. Hence, this Court 1 (2013) 5 SCC 455 CS DJ ADJ No. 1243/2018 Page 3 of 5 observes and holds that as per Order XXXVII Rule 2(3) CPC, on the failure on the part of the defendant to file appearance, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree.
6. The Hon'ble High Court of Delhi in Satish Chand v. Bal Krishan2 has held that in law once a defendant in a summary suit under Order XXXVII, CPC, fails to file appearance, then the allegation in the plaint are deemed to be admitted, and the plaintiff is entitled to the decree as prayed in the suit.
7. The Hon'ble High Court of Delhi further held in Satish Chand v. Bal Krishan3 that Court cannot go into the merits of the matter because merits of the matter would have been gone into if the appearance was filed, and thereafter, on service of summons for judgment a leave to defend application has to be filed. This stage did not arise in the present case, as the defendant failed to file any appearance and consequentially, the suit is liable to be decreed against the defendant.
8. Thus, the suit is decreed in favour of the plaintiff and against the defendant for a sum of ₹3,40,000/- (Rupees Three lakhs forty thousand only). This Court observes that the suit of the plaintiff is based upon two cheques, which were dishonoured on presentation and squarely covered Rule 1(2) of Rule 1 of Order, XXXVII, CPC. This 2 CM Nos. 41014/2017 and 41015/2017 date of decision 14.11.2017 3 ibid.
CS DJ ADJ No. 1243/2018 Page 4 of 5Court also observes that as the cheques were dishonoured on presentation, the plaintiff is held to be entitled for interest @18% p.a. from the date of the cheques i.e. 12.11.2018, as per the mandate of Section 80 of the Negotiable Instruments Act, 1881. Accordingly, the plaintiff is held entitled for judgment and money decree of ₹3,40,000/- (Rupees Three lakhs forty thousand only) along with interest @18% p.a. w.e.f. 12.11.2018 until the date of actual realisation against the defendant. The costs of the suit are also awarded to the plaintiff.
9. Decree sheet be drawn up accordingly.
10. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.01.10 10:09:10 +0530 Pronounced in the open (Hargurvarinder Singh Jaggi) Court on January 09, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 1243/2018 Page 5 of 5