Vikram Jain v. Jai Kumar Rakyan

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI: NEW DELHI C.R.P No. 117/2010 & CM No. 11399/2010 % Judgment reserved on: 1st October, 2010 Judgment delivered on: 19th October, 2010 Sh.Vikram Jain, S/o Sh. Vijay Kumar Jain Proprietor of M/s Jain Metal Industries R/o A-9, Oberoi Apartments 2, Shyam Nath Marg, Delhi 110054 ….Petitioner. Through: Mr. K.C.Diwan, Advocate. Versus Sh. Jai Kumar Rakyan S/o Late Sh. Mithu Mall Rakyan R/o H.No. C-530, Defence Colony New Delhi 110024 ….Respondent Through: None HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. This revision petition under Section 115 of Code of Civil Procedure (for short as "Code") has been filed against order dated 17th May, 2010 passed by Additional District Judge, Delhi, whereby petitioner"s application under Order 37 Rule 4 of the Code was dismissed. 2. Brief facts of this case are that, petitioner (defendant in the trial court) approached respondent (plaintiff in the trial court) through a common friend and induced him for giving a loan of Rs. 3,00,000/- (Rupees Three Lacs only) for a period of 22 months on interest @ 18% p.a.. Respondent upon the assurance of the common friend gave a friendly loan of Rs.3,00,000/- to the petitioner on 20th April, 2001 @ 18% p.a. for a period of 20 months. To secure the repayment of the aforesaid loan, petitioner issued a cheque bearing no. 429948 dated 31st December, 2002 for Rs. 3,00,000/-. 3. As far as the agreed rate of interest is concerned, petitioner paid interest @ 18% p.a. upto December, 2001 on the loan amount. Thereafter, petitioner stopped paying the interest. Finally, the cheque issued by petitioner was presented by respondent for encashment but the said cheque was dishonoured and was returned back with remarks "Insufficient Funds". Thereafter, legal notice was issued but the petitioner did not pay the amount. Accordingly, respondent filed a suit for recovery of Rs.4,16,.268/- under Order 37 Rule 4 of the Code. 4. Summons of the suit was issued to the petitioner but he did not appear during the prescribed period. Accordingly, vide order dated 8th July, 2004 suit of the respondent was decreed. 5. Thereafter, petitioner filed an application under Order 37 Rule 4 of the Code and while issuing notice on the said application, trial court stayed the execution proceedings and called upon the petitioner, vide order dated 16th May, 2008 to deposit 50% of the decretal amount in the court. Aggrieved by the said order, petitioner filed Civil Misc. (Main) No. 706/2008 before this Court. 6. Vide order dated 18th December, 2009, passed by this Court, that petition was dismissed and petitioner was also directed to pay the costs of Rs.15,000/- for six appearances before this Court. It was also ordered that if the costs are not paid, the same be recovered as part of the decree of the trial court. 7. Thereafter, vide impugned order application under Order 37 Rule 4 of the Code, for setting aside decree dated 8th July, 2004 has been dismissed by the trial court. 8. It is contended by learned counsel for petitioner that none of the original documents were filed before the trial court and in the absence of the same no decree could be passed under Order 37 Rule 4 of the Code. Trial court has committed a judicial error and as such impugned order is liable to be set aside. 9. Petitioner for reasons best known to him has not placed on record copies of any of the relevant documents along with this petition namely, copy of application under Order 37 Rule 4 of the Code as well as reply to it, if any. 10. Trial court in its impugned order observed as under:- "First ground of the application is that the-then Court of Mr. Pradeep Chadda, Ld. ADJ, Delhi did not order to issue summons under Order 37 of CPC to Defendant for putting appearance. The Ahlmad issued summons on his own. This plea is baseless