Case Note & Summary
The plaintiff, M/s A B and U Communication Pvt. Ltd., filed a summary suit under Order 37 of the Code of Civil Procedure, 1908 (CPC) against the defendant, Shri Jitu Shah, proprietor of M/s Dhaval Enterprise, for recovery of Rs.15,14,474/- based on four cheques that were dishonoured on 12 December 2002. The plaintiff also claimed interest at 24% per annum from the date of dishonour until filing of the suit, and 18% per annum from the date of filing until realization. The plaintiff took out a Summons for Judgment, which was decided on merits. By an order dated 7 October 2008, the court granted conditional leave to defend, directing the defendant to deposit Rs.10,00,000/- on or before 12 December 2008. The defendant failed to comply with this condition. Consequently, the plaintiff filed an affidavit of evidence and tendered original documents, including the dishonoured cheques and bank memos, and prayed for a decree under Order 37 Rule 3(6)(b) CPC. The matter was posted for ex parte decree. The defendant's counsel objected, arguing that the defendant had a right to cross-examine the plaintiff's witness and that a full trial should be held. The court framed the issue of whether it should pass a decree only after recording evidence and allowing cross-examination. After hearing both sides, the court held that under Order 37 Rule 3(6)(b) CPC, when a defendant fails to comply with the conditional order granting leave to defend, the court may pass a decree in favour of the plaintiff without further trial. The defendant's right to cross-examine is forfeited upon non-compliance. The court accordingly passed an ex parte decree in favour of the plaintiff for the suit amount with interest at 6% per annum from the date of filing of the suit until realization, and costs.
Headnote
A) Civil Procedure - Summary Suit - Order 37 Rule 3(6)(b) CPC - Ex Parte Decree - Where defendant fails to comply with conditional order granting leave to defend, the court may pass a decree in favour of the plaintiff without further trial - The defendant's right to cross-examine is forfeited upon non-compliance - Held that the court is not required to record evidence or allow cross-examination before passing decree (Paras 4-8).
Issue of Consideration
Whether the court should pass an ex parte decree under Order 37 Rule 3(6)(b) CPC without recording evidence and allowing cross-examination, when the defendant failed to comply with the conditional order granting leave to defend.
Final Decision
The court passed an ex parte decree in favour of the plaintiff for the suit amount of Rs.15,14,474/- with interest at 6% per annum from the date of filing of the suit until realization, and costs.
Law Points
- Order 37 CPC
- Summary Suit
- Ex Parte Decree
- Non-compliance with Conditional Leave
- Right to Cross-Examination
