Del HC | Trial court cannot reconsider issue of maintainability of suit under Or. 37 CPC where once summons have been issued and served on defendant

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the suit filed by the petitioner under Order 37 (summary procedure) of the Civil Procedure Code was directed to be treated as an ordinary suit.

A suit under Order 37 was filed by the petitioner for recovery of the amount due to them for sale and supply of certain goods to the respondent. The trial court issued summons in the prescribed format under Order 37 which were duly served on the respondent. Despite the service, the respondent failed to enter appearance. When the petitioner applied for the passing of a decree as respondent failed to enter an appearance, the trial court, by the impugned order, held that since the petitioner was claiming balance amount of the invoices and there was some doubt about the authenticity of the invoices, the suit be treated as an ordinary suit.

Vishal Garg, Advocate for the petitioner, the trial court could not have doubted the veracity of the invoices, especially when no appearance was entered by the respondent or any application seeking leave to defend filed and objection taken to the invoices.

Discussing Order 37, the High Court stated: “Order 37 Rule 2(3) CPC specifically lays down that defendant shall not defend the suit unless he enters appearance and in default of his entering appearance the allegations made in the plaint shall be deemed to be admitted and plaintiff would be entitled to a decree for the sum not exceeding the sum mentioned in the summons.” Opining that the trial court had committed error, the High Court observed: “In view of the specific provisions of Order 37 Rule 2(3) CPC, it is not within the powers of the trial court at that stage, to assess as to whether the suit satisfies the requirement of Order 37 CPC or not. Once summons in the prescribed form have been directed to be issued and duly served, the defendant is obliged to enter appearance within the statutory period, and on failure of the defendant to enter appearance within the statutory period, the averments in the plaint are deemed to be admitted and the plaintiff is entitled to a decree forthwith.”

It was noted that the petitioner had specifically contended that the subject suit was based on written contract i.e. invoices which have been duly and acknowledged by the respondent. Therefore, it was not open to the trial court at that stage to reconsider the issue and held that the suit was not maintainable under Order 37. With regard to the finding of redaction of clauses in the invoices by applying white fluid, the High Court held that it was for the respondent to have taken an appropriate objection in an application seeking leave to defend, filed after entering appearance.

Since the respondent failed to enter an appearance, the averments in the plaint were deemed to have been admitted and the plaintiff was held entitled to a decree. The suit was directed to be listed before the concerned trial court for passing appropriate order.[S.S. Steel Industry v. Guru Hargobind Steels, 2019 SCC OnLine Del 9964, decided on 05-09-2019]