Rajbala v. Kaumudi Rani & Ors.

1. The point raised in the present petition is a very short one.

2. Petitioner had filed a suit under Order XXXVII CPC. However, vide order dated 26.11.2024, the learned Trial Court has converted the suit into an ordinary suit, holding that the suit did not fall within the scope and ambit of Order XXXVII CPC.

3. According to plaintiff/petitioner, she had lent a sum of Rs.5,00,000/- to one Sh. Chanderhas Garg on 01.07.2022. Sh. Chanderhas Garg issued a pronote in this regard. Unfortunately, he died on 31.01.2023. Thereafter, the plaintiff/petitioner sent legal notice to his legal heirs but since the liability under the abovesaid pronote was not cleared, a summary suit was filed.

4. Learned Trial Court has taken a view that summary suit is not maintainable as the plaintiff/petitioner is, merely, seeking recovery of amount taken by Sh. Chanderhas Garg, who is no more alive and it is not clear as to CM(M) 411/2025 2 who are his legal heirs and whether they had inherited any property, left by him or not. It also observed that, even otherwise, none of the alleged legal heirs was signatory to a pronote and, therefore, the suit was not maintainable under Order XXXVII CPC.

5. Learned counsel for the petitioner/plaintiff submits that the issue is no longer res integra and in this regard, she strongly relies upon judgment of Coordinate Bench of this Court given in Sanjeev Jain Vs. Rajni Dhingra and Others: 2018 SCC OnLine Del 13093. It is contended that the abovesaid judgment clinches the issue and, therefore, there was no reason or occasion for the learned Trial Court to have converted a suit into a regular suit.

6. Para 14, 15 and 16 of said judgment read as under:-

CM(M) 411/2025 3

15. Thus, the above judgments are conclusive as to the maintainability of the present suit against the LRs of Late Mr. Virendra Dhingra. This Court however, is not going into the issue as to whether the said LRs in fact came into possession of any assets of Mr. Dhingra, or if the decree which may be passed in the present suit is executable against Mr. Dhingra's assets and if so, against which of the assets. This is not an issue that has been raised in the present suit.

16. The maintainability of the suit being not an issue any more, the facts of the present case show that Mr. Dhingra had given a cheque dated 26th December, 2017 for a sum of Rs. 3 crores. The notice dated 21st March, 2018 is also placed on record. The payment of the interest also having been made on various dates, the availing of the loan initself is not in dispute.”

7. The facts are, virtually, identical herein, also.

8. It seems that the abovesaid judgment has escaped the notice of the learned Trial Court.

9. Learned counsel for respondent No.2 appears on advance notice and submits that there are various triable issues and, even otherwise, it seems to be a fit case where leave to defend needs to be granted.

10. Fact remains that the present case is at a very nascent stage and the aspect of there being any triable issue or not, would come little later, once the suit is considered summary in nature. From that angle, at least, all the rights and contentions of the defendants/respondents are left open.

11. Learned counsel for the petitioner/plaintiff submits that the case is still at the same stage, as the petitioner/plaintiff has not yet taken any step for issuing even regular summons.