Gopal Prasad v. Vijender Singh

1. Allowed, subject to all just exceptions.

2. Application is disposed of. RFA No. 632/2014

3. Respondent filed a suit under Order 37 of the Code of Civil Procedure, 1908 (“the Code”, for short) against the appellant before the trial court. Suit was filed on the basis of Loan Agreement dated 10th June, 2010. Respondent alleged that he had advanced a friendly loan of `4,00,000/- to appellant on 10th June 2010, which was repayable after one year. Appellant did not repay the loan, hence, the suit for recovery of `4,00,000/- together 2014:DHC:6786 with interest @ 18% per annum from the date of institution of the suit till realization of the said amount. Meaning thereby, pendente lite and future interest was claimed and not the interest till the filing of suit.

4. Summons, as prescribed under Order 37 of the Code, were issued to the appellant, which were duly served upon him. Appellant entered appearance within the prescribed period of 10 days in terms of Order 37 (3) (1) of the Code. Thereafter, trial court issued summons for judgment in the prescribed format, returnable for 5th August, 2014, which were also served on the appellant on 15th June, 2014. Initial summons as well as summons for judgment were received by the son of appellant for and on behalf of appellant.

5. Despite service of summons for judgment, appellant did not file leave to defend application within period of 10 days as envisaged under Order 37(3)(5) of the Code. Consequently, trial court passed a decree on 5th August, 2014 in the sum of `4,00,000/- together with pendente lite and future interest @ 6% per annum against the appellant.

6. Order 37(3)(6)(a) of the Code provides that if the defendant fails to apply for leave to defend or if such application is made and refused, the plaintiff shall be entitled to judgment forthwith. Accordingly, no illegality or perversity can be found in the decree dated 5th August, 2014, since, admittedly, no leave to defend application was filed by the appellant within the prescribed period.

7. Appellant filed an application under Order 37 Rule 4 of the Code praying therein that decree dated 5th August, 2014 be set aside. A plea was taken by the appellant that he was not served with the summons for judgment. Vide order dated 8th September, 2014 trial court dismissed this application. Trial court noted that summons for judgment were received by the son of appellant. Further that initial summons were also received by the son of appellant. Trial court compared the signatures of son of appellant on the earlier summons and the subsequent summons for judgment and held that the signatures were of same person. Trial court further noted that son of appellant had appeared in Court on 5th August, 2014, which also indicated that summons for judgment were duly served and appellant was aware of the date fixed in the matter. Trial court also noted that on merits also there was no case, since signatures on the loan agreement dated 10th June, 2010 were not disputed. Only plea taken by the appellant that he was forced to sign the said agreement was not believable. Trial court has noted that police complaint was filed after two years, which clearly indicated that it was an afterthought. Be that as it may, I need not to go into all these issues since said order dated 8th September, 2014 has become final. Appellant filed a petition under Article 227 of the Constitution of India in this Court against the order dated 8th September, 2014, which has been dismissed by a learned Single Judge of this Court. This fact has been admitted by the learned counsel for appellant.

8. Since no leave to defend application was filed, trial court has rightly passed the decree, in view of Order 37(3)(6)(a) of the Code. Accordingly, appeal is dismissed. CM Appl. No. 19872/2014

9. Miscellaneous application is disposed of as infructuous. A.K. PATHAK, J. DECEMBER 05, 2014 rb