Delhi High Court
Maa Communications Bozell Ltd. vs Sh. K.L. Shroff And Anr. on 28 April, 2004
Equivalent citations: 111(2004)DLT530
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. This Court has considered the maintainability of revision petitions against orders declining Leave to Defend under Order xxxvII of the Code of Civil Procedure in V.S. Saini & Anr. v. D.C.M. Limited, , rendering this Revision not maintainable. On the last date of hearing, on the request of the learned counsel for the Petitioner, an adjournment was granted in this matter.
2. Learned counsel for the Petitioner has contended that the decision in V.S. Saini's case (supra) may not be correct. I find no reason to reconsider the said Judgment and the Petitioner can surely avail of its remedies. Relying on the decision in State of Bihar vs. Kalika Kuer @ Kalika Singh and others, it is sought to be contended that the observations of the Hon'ble Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, are not in the nature of obiter dicta but are per incurium . I am unable to appreciate how the decision in Kalika Singh's case (supra) advances the case of the Petitioner. In any event even if the observations of the Hon'ble Supreme Court are per incurium as counsel for the Petitioner has contended, its persuasive if not binding effect on this Court cannot be doubted or debated; the concern of the Apex Court was how its judgments must be treated by coordinate Benches. I also fail to appreciate the manner in which the decision of the Apex Court in K. Ajit Babu and others v. Union of India and others, , is of any assistance to the Petitioner.
3. In V.S. Saini's case (supra) it had specifically been noted that the view of the Division Bench in Siri Krishan Bhardwaj v. Manohar Lal Gupta & another, would have held sway but for two subsequent events - firstly the observations of the Hon'ble Supreme Court in Khimji's case (supra) and secondly, the enforcement of the amendments carried to Section 115 of the CPC. Learned counsel for the Petitioner cannot seriously contend that the opinion of the Division Bench must continue to hold the field even after these two subsequent events. Learned counsel for the Petitioner has also drawn my attention to the decision of the Division Bench in Vinod Kumar Gupta & others v.Sanjay Gupta & others, 94 (2001) DLT 947 (DB) decided on 5.10.2001. In that case the Division Bench had merely accepted that the counsel for the appellant had by bona fide mistake treated the Appeal as an RFA (OS) instead of an FAO (OS). There is no discussion in that Judgment as to whether, in respect of Summary suits governed by Order xxxvII of the CPC, an Appeal must be filed from the Decree or from the Order declining leave to defend. Neither Khimji's case (supra) nor Siri Krishan's case (supra) was either cited or considered by the Bench.
4. Today the Court is faced with a painful paucity of time and the luxury of availing several reliefs is no longer practicable. In the case of a Revision against a Decree under Order xxxvII of the CPC the preference to file revision appears to me only to avoid payment of ad valorem court fee. The ambit of interference in an Appeal is much larger than in a Revision. The effect of any leniency is that the Defendant is needlessly given the option to file a Revision, and/or an Appeal and/or a petition under Article 227 of the Constitution, thus leading to a proliferation of proceedings.
5. Learned counsel for the Petitioner has also contended that the question that arises in the present case concerns the exercise of jurisdiction by the Trial Court, and, therefore, a Revision is maintainable. The argument is that the Defendant had contended that a suit based on an acknowledgement and/or a statement of accounts is not maintainable. I have perused the grounds in the Revision and this point has not been clearly and distinctly raised. A reading of the impugned Order also does not indicate that any such ground had been taken. On the contrary, perusal of the Revision shows that the Petitioner/Defendant had challenged the genuineness of the acknowledgement. In this case several bills had been issued. The maintainability of account in respect of bills/invoices came to be considered by this Court in S.V. Electricals Ltd., v. Sylvania & Lakshman Ltd., 2000 (1) AD (Delhi) 75 and KLG Systel Limited v. M/s. Fujitsu ICIM Limited, 2001 V AD (Delhi) 58. I find no reason to depart from the view that I had already taken, which is itself based on several decisions of this Court. In KLG Systel case (supra), on 23rd April, 2001, I had observed that - "It is no longer res integra that Invoices/Bills are `written contracts' within the contemplation of this Order. Reference is directed to Messrs. Punjab Pen House vs. Samrat Bicycle Ltd., , Corporate Voice (Pvt.) Ltd. vs. Uniroll Leather India Ltd., , and Beacon Electronics vs. Sylvania and Laxman Ltd.,1998 (3) Apex Decisions (Delhi) 141". An acknowledgement or a signed statement of accounts can also be viewed as a contract within the contemplation of Order xxxvII of the CPC as it stands on a better footing than bills/invoices. Even if that is not so there cannot be any gainsaying that suit under Order xxxvII of the CPC could have been filed on the strength of the bills/invoices and the only significance to be given to the acknowledgement is the fact that the Plaintiff has restricted his claim to the amount mentioned therein and has not claimed the larger aggregate value of the invoices/bills. It would call for myopic vision to prefer the view that merely because a lesser amount has been sued for, the action would no longer remain in the genre of a Summary suit. One cannot also turn a blind eye to the intendment if not the mandate of Order XLIII Rule 1A of the CPC.
6. This Revision is wholly without merit and is dismissed with costs of Rs.5,000/-.
April 28, 2004 Vikramajit Sen,