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.25,01,219.50 based on twelve cheques that were dishonoured on 24/03/2003. The plaintiff also claimed interest of Rs.17,70,981.63 at 24% per annum from the date of dishonour until filing of the suit, and further interest at 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 07/10/2008, the court granted conditional leave to defend, directing the defendant to deposit Rs.18,00,000/- on or before 17/12/2008. The defendant admitted non-compliance with this order. Consequently, the plaintiff filed an affidavit of evidence and tendered original documents, including the twelve dishonoured cheques and bank memos, and prayed for a decree under Order 37 Rule 3(6)(b) CPC. The suit 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 conducted. The court framed the issue of whether a decree could be passed without recording evidence and cross-examination. After hearing both sides, the court examined Order 37 Rule 3(6)(b) CPC, which provides that if the defendant fails to comply with the terms imposed by the court while granting leave to defend, the plaintiff is entitled to judgment forthwith. The court noted that the defendant had not complied with the conditional order and that the plaintiff had already filed an affidavit of evidence and produced original documents. The court held that the defendant's failure to comply disentitled them from further contesting the suit, and the plaintiff was entitled to a decree. The court rejected the defendant's request for a full trial and passed an ex parte decree in favour of the plaintiff for the principal amount of Rs.25,01,219.50 with interest at 6% per annum from the date of the suit until realization, along with costs.
Headnote
A) Civil Procedure - Summary Suit - Order 37 Rule 3(6)(b) CPC - Conditional Leave to Defend - Failure to Comply - The plaintiff filed a summary suit based on twelve dishonoured cheques. The court granted conditional leave to defend, requiring the defendant to deposit Rs.18,00,000/-. The defendant failed to deposit the amount. The plaintiff sought an ex parte decree. The defendant objected, claiming a right to cross-examine the plaintiff's witness. The court held that under Order 37 Rule 3(6)(b), if the defendant fails to comply with the terms imposed by the court, the plaintiff is entitled to judgment forthwith. The court rejected the defendant's request for a full trial and passed an ex parte decree in favour of the plaintiff. (Paras 1-8)
Issue of Consideration
Whether the court should pass a decree in a summary suit under Order 37 CPC without recording evidence and cross-examination when the defendant has 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 principal amount of Rs.25,01,219.50 with interest at 6% per annum from the date of the suit until realization, along with costs.
Law Points
- Order 37 Rule 3(6)(b) CPC
- Summary Suit
- Dishonoured Cheques
- Conditional Leave to Defend
- Ex Parte Decree
- Entitlement to Judgment Forthwith
