IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

I.A.Nos.461/06, 462/06 & 7884/06 in CS(OS) No.1429/2005
RESERVED ON: 19-09-2006
DATE OF DECISION: 08-12-2006
M/s.Motilal Banarasidass Publishers
.......... Plaintiff
Private Limited
through: Mr.Rajiv Tyagi, Advocate
VERSUS
Standard Chartered Bank

.......... Defendant
through: Mr.Sanjay Gupta and Ms.Varsha
Kriplani, Advocates

REVA KHETRAPAL, J.
1.
By this order I shall dispose of three applications filed by the
defendant. The first application being I.A. No.461/2006 is an application
filed by the defendant for entering appearance. The second application
being I.A.No.462/2006 is an application under Order XXXVII Rule 3(7)
read with Section 151 of the Code of Civil Procedure for condonation of
delay in entering appearance before this Court. The third application being
I.A.No.7884/05 is an application under Section 151 of the Code of Civil
Procedure also filed by the defendant, praying that the present suit be treated
as an ordinary suit and for permission to file its written statement after
giving direction to the plaintiff to supply copies of documents annexed with
the plaint.
2.

The backdrop in which these applications were filed is as follows.

3.
A suit under Order XXXVII of the Code of Civil Procedure, 1908 for
recovery of an amount of Rs.20,53,134/- along with interest thereon and
other reliefs was filed by the plaintiff against the defendant. The defendant
was served with summons of the said suit on 05.12.2005. An application for
entering appearance along with an application for condonation of delay was
filed by the defendant on 2.1.2006. The defendant was again served with
summons of the suit on 24.01.2006.
4.
The defendant avers that though summons of the present suit were
served upon it, there was no proper service of summons since copy of the
plaint was served without documents and annexures to the plaint. The
defendant further avers that on receipt of summons the same were sent to the
lawyers of the Bank, namely, M/s. S.N. Gupta & Co. for further action in the
matter. In the first week of December, 2005, the office premises of counsel
for the defendant-bank was in the process of shifting from A-67, Second
Floor, Defence Colony, New Delhi to R-26, Ground Floor, NDSE Part II,
New Delhi-110 049, and thus all the files and books were being packed for
shifting purposes. In the aforesaid process of shifting, the fact that the
present suit was filed under the provisions of Order XXXVII of the Code of
Civil Procedure could not be noticed and the counsel for the defendant-bank
remained under the impression that the suit was an ordinary suit and that the
same was listed for written statement on 25.02.2006. On 23.12.2005,
however, counsel for the defendant-bank received written instructions by
E.mail from the office of the defendant-bank at Parliament Street, New
Delhi, attaching the summons of the suit. The said summons were seen and
it was revealed that the same were under the provisions of Order XXXVII of
the Code of Civil Procedure. Thereupon, the present application for entering
appearance alongwith an application for condonation of delay was drafted
and sought to be filed on 27.12.2005. Since, however, the High Court of
Delhi was closed for winter vacation from 21.12.05 to 1.1.06, the
applications for entering appearance and condonation of delay could not be
filed, and the same were eventually filed on 2.1.2006, on the re-opening of
the courts after the winter vacation.
5.
The applications are strongly contested by counsel for the plaintiff
who in reply asserted that in the event delay in entering appearance is
condoned, the plaintiff would be put to grave prejudice. It is alleged by the
plaintiff that the applications of the defendant are a bundle of lies, that the
defendant has acted in a most callous and negligent manner in prosecuting
the present suit and is not entitled to the discretionary relief of condonation

of delay in entering appearance. Even assuming without admitting that the

office of the counsel for the defendant was in the process of shifting and in
consequence thereof, counsel for the defendant was under the impression
that it was an ordinary suit, the defendant which is a scheduled bank having
law officers and a battery of lawyers must have been fully aware of its duties
and obligations under Order XXXVII of the Code of Civil Procedure. Thus,
the averments made in the present applications are an after-thought and a
mere cover-up for deliberate lapses on the part of the defendant. A
substantial indefeasible legal right has accrued to the plaintiff on the
defendant not entering appearance in the prescribed manner and, therefore,
the plaintiff as of right, is entitled to a decree in the suit in terms of the
provisions of Order XXXVII Sub-Rule 3 of Rule 2 of the Code of Civil
Procedure.
6.
Counsel for the plaintiff and the defendant-Bank have been heard at
length.
7.
In the course of hearing, learned counsel for the defendant-Bank, inter
alia, submitted that the delay in entering appearance was only for 4-5 days as
the defendant was served with summons on 5th December, 2005 and the
application entering appearance was filed immediately on the re-opening of
the High Court after the winter vacation on 2nd January, 2006. During the
vacation, he urged, the period of limitation stops running. In the alternative,
it was submitted by him that even if it is assumed that the period of
limitation does not stop running during the period when the High Court of
Delhi was closed, the Registry could not have accepted the application for
entering appearance. This was evident from the fact that the application for
entering appearance was sought to be filed on 27th December, 2005
alongwith the application for condonation of delay, but the same was not
accepted by the Registry. It was further submitted that the delay was not
deliberate, but was on account of the reasons mentioned in the application,
being that when the summons were forwarded to the counsel, he was in the
process of shifting his office from Defence Colony to South Extension, and
that the statement made on affidavit by the counsel to this effect was not
specifically denied by the plaintiff. Learned counsel for the defendant-Bank
also urged that the Bank had already instituted recovery proceedings against
the plaintiff and in case the delay was not condoned, the right of the Bank to
contest the present suit would stand foreclosed.

8.
Adverting to the prayer of the defendant for condonation of delay in
entering appearance, reliance was placed by learned counsel for the
defendant on a decision of the Supreme Court in the case of N. Balakrishnan
vs. M. Krishnamurthy (1998) 7 SCC 123, wherein relying upon its earlier
decisions in Shakuntala Devi Jain vs. Kuntal Kumari (1969) 1 SCR 1006
and State of W.B. vs. Administrator, Howrah Municipality (1972) 1 SCC
366, the Supreme Court held that the words sufficient cause in Section 5
of the Limitation Act, 1963 should receive a liberal construction so as to
advance substantial justice for a court knows that refusal to condone delay
would result in foreclosing a suitor from putting forth his cause. It was
further laid down that it must be remembered that in every case of delay,
there can be some lapse on the part of the litigant concerned. That alone is
not enough to turn down his plea and to shut the door against him. If the
explanation does not smack of mala fides or it is not put forth as part of
dilatory strategy, the Court must show utmost consideration to the suitor.
The following observations made by the Supreme Court are also apposite:
(SCC pgs. 127-128, paras 9-11)
9. It is axiomatic that condonation of delay is a matter of discretion of
the court. Section 5 of the Limitation Act does not say that such discretion
can be exercised only if the delay is within a certain limit. Length of delay
is no matter, acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be uncondonable due to a want
of acceptable explanation whereas in certain other cases, delay of a very
long range can be condoned as the explanation thereof is satisfactory. Once
the court accepts the explanation as sufficient, it is the result of positive
exercise of discretion and normally the superior court should not disturb
such finding, much less in revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds or arbitrary or perverse. But it
is a different matter when the first court refuses to condone the delay. In
such cases, the superior court would be free to consider the cause shown for
the delay afresh and it is open to such superior court to come to its own
finding even untrammelled by the conclusion of the lower court.
10.

The reason for such a different stance is thus:

The primary function of a court is to adjudicate the dispute between
the parties and to advance substantial justice. The time-limit fixed for
approaching the court in different situations is not because on the expiry of
such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the rights of parties. They
are meant to see that parties do not resort to dilatory tactics, but seek their
remedy promptly. The object of providing a legal remedy is to repair the
damage caused by reason of legal injury. The law of limitation fixes a
lifespan for such legal remedy for the redress of the legal injury so suffered.
Time is precious and wasted time would never revisit. During the efflux of
time, newer causes would sprout up necessitating newer persons to seek
legal remedy by approaching the courts. So a lifespan must be fixed for
each remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. The law of limitation is
thus founded on public policy. It is enshrined in the maxim interest
reipublicae up sit finis litium (it is for the general welfare that a period be
put to litigation). Rules of limitation are not meant to destroy the rights of
the parties. They are meant to see that parties do not resort to dilatory tactics
but seek their remedy promptly. The idea is that every legal remedy must be
kept alive for a legislatively fixed period of time.
9.
Reliance was next placed by learned counsel for the defendant upon a
judgment of this Court in HDFC vs. Anil Laul 2000 V AD
(DELHI)
542. In the said case, the plaintiff had filed a suit for recovery of money
under Order XXXVII of the Code of Civil Procedure. Summons in Form IV
Appendix B, CPC were served upon the defendants on May 14, 1999. In
terms of Order XXXVII CPC, appearance was required to be entered on or
before 24th May, 1999. The defendants, however, entered appearance on
19th July, 1999 and filed an application for condonation of delay on the
ground that in the summons itself it was mentioned that the suit would be
listed again on July 20, 1999 before the Joint Registrar and because of this
date appearing on the summons, the defendants were misled and they
remained under the impression that they had to enter appearance only on
20th July, 1999. The learned Single Judge of this Court while condoning the
delay made the following pertinent observations in paragraph 4 of the
Judgment:
4. It is correct that under Order 37 of the Code, on receipt of summons in
Form IV Appendix B the defendant is required to enter appearance within 10
days from the date of service of summons upon the defendant. But this
Court can also not ignore the fact that when summons are received by a
layman who has hardly appeared in Court, he can be misled by the date
which is mentioned on the summons. A perusal of the summons shows that
the party was informed that the matter will be taken up by the Court on 20th
July, 1999. No mala fides have been imputed to the defendant nor any

reason has been shown as to why the defendant who wants to contest the suit
would not enter appearance in case he was aware that on not filing
appearance within 10 days decree will be passed against him. At best it can
be a case of casual approach of the defendant to the whole matter. However,
it cannot be said that the mistake on the part of the defendant in not entering
appearance within 10 days was not bona fide. It can also not be said that by
writing the date of 20th July, 1999 on the summons when the defendants
were informed that the matter will be listed before the Joint Registrar, the
defendant was not misled. In my view, therefore, there is sufficient cause
for not entering appearance within time and a good cause has been shown
for the delay in entering appearance. I accordingly allow this application
subject to payment of Rs.1,000/- as costs and condone the delay in entering
appearance by the defendant.
10. Reference was also made by learned counsel for the defendant to
another decision rendered by a learned Single Judge of this Court in Hector
M. Mehta vs. CRB Capital Markets Ltd. 2002 V AD (DELHI) 47. In the
said case, summons under Order XXXVII CPC were served on the
defendant Company through the Official Liquidator on 25th August, 2000,
but there was delay of 1 year in entering appearance, which was sought to be
got condoned on the ground that the summons and copies of the plaint had
got mixed up with the huge and voluminous records of the cases pending
against the defendant Company in the office of the Official Liquidator. Not
only this, though the defendant eventually entered appearance on 3rd
August, 2001, the application for entering appearance alongwith the affidavit
was filed even later, on 23rd November, 2001. Relying upon the decision of
the Supreme Court in the case of N. Balakrishnan (supra), the learned
Single Judge held that in the absence of anything showing mala fides or
deliberate delay as a dilatory tactic, Court should normally condone the
delay. Length of delay, it was further held, was not material. Acceptability
of the explanation is the only material criteria. There is no presumption
that delay in approaching the Court is always deliberate. It should not be
overlooked that refusal to condone the delay would result in foreclosing the
defendant from putting forth his defence.
11. Learned counsel for the plaintiff in support of the contention raised by
him that delay was not liable to be condoned relied upon the judgments of
the Supreme Court in Mata Din vs. A. Narayanan AIR 1970 SC 1953, Union
of India vs. M/s. Popular Construction Co. AIR 2001 SC 4010, Rajni Kumar
vs. Suresh Kumar Malhotra and another AIR 2003 SC 1322, apart from

relying upon a decision of the Rajasthan High Court in M/s. Aradhana

Textiles Pvt. Ltd. vs. M/s. Vishnu Textiles Traders and others AIR 1990
RAJASTHAN 98 and the decisions of this Court in M/s. Gainda Mull Hem
Raj vs. M/s. Arora Brothers and another AIR 1973 DELHI 141, Akhil Chit
and Finance (P) Ltd. vs. Ramdutt Sharma & Ors. 35 (1988) DLT 405, M/s.
Vijaya Home Loans Ltd. vs. M/s. Crown Traders Ltd. and another AIR 1998
DELHI 183, U.K. Paints (India) Ltd. vs. Surlux Medi Equip Ltd. & Anr.
2001 (60) DRJ 472, Shri Rane Parkash and others vs. Central Bank of India
AIR 2003 DELHI 415 and M/s. Industrial Medical Engineers & Others vs.
Anil Nijhawan and Another 110 (2004) DLT 581.
12. Having carefully scanned the aforesaid judgments, I am of the view
that none of the aforesaid decisions are of any assistance to the plaintiff. In
the case of Mata Din (supra), there was a delay in filing the appeal before
the Supreme Court, which was condoned by the Supreme Court, holding that
the mistake of counsel may in certain cases be taken into account for
condonation of delay. The said judgment far from coming to the assistance
of the plaintiff supports the defendant's case for condonation of delay.
13. In the case of M/s. Popular Construction Co. (supra), the question
posed for determination before the Supreme Court was whether the
provisions of Section 5 of the Limitation Act, 1963 were applicable to an
application challenging an award under Section 34 of the Arbitration and
Conciliation Act, 1996. Answering the said question in the negative, the
Supreme Court held that the issue had to be resolved with reference to the
language used in Sections 29(2) of the Limitation Act, 1963 and Section 34
of the 1996 Act. The said decision has no application to the present case in
view of the fact that the same relates to the Arbitration and Conciliation Act,
1996, which as pointed out in para 7 of the judgment itself, is in the genre of
'Special Law'.
14. In the case of Rajni Kumar (supra), the Supreme Court was
considering an application for setting aside an ex parte decree passed in a
summary suit under Order XXXVII, CPC and, in this context, held that since
Rule 4 of Order XXXVII specifically provides for the setting aside of such
decree, the provisions of Rule 13 of Order IX will not apply to a suit filed
under Order XXXVII. Adverting to the facts of the case before it, the
Supreme Court held that though the appellant had shown sufficient cause
for his absence on the date of passing of the ex parte decree, he had failed to
disclose facts which would have entitled him to defend the case and hence

the application of the defendant under Rule 4 of Order 37 was liable to be

rejected. The ratio of this decision, clearly, has no application to the present
case.
15. The case of M/s. Aradhana Textiles (supra) again is of no assistance
to the plaintiff herein. The Rajasthan High Court in the said case was
dealing with an application for leave to defend, filed belatedly, with no
application for condonation of delay, which was submitted subsequently.
Notwithstanding, it was held by the Court that it was not a case of mistake of
the defendant, but it was a case of ignorance of the law by the counsel for
the defendant. Condoning the delay it was held:
Ignorance of the lawyer may be a sufficient and special ground in some
cases for condoning the delay.
16. In the case of M/s. Gainda Mull Hem Raj (supra), this Court (Hon'ble
Mr. Justice S.N. Andley) held that it was necessary that the facts mentioned
in the application for leave to defend be established upon affidavit and that
the reliance placed by the trial court upon an earlier affidavit filed by the
defendant in respect of some other application, even though in the same suit,
was not proper. It was directed that the trial court reconsider the question as
to whether leave should be granted or not after the defendant had filed an
affidavit in support of the averments made by him in his application for
leave to defend and an opportunity had been afforded to the plaintiff to file
counter affidavit thereto. This judgment, in my opinion, has no application
to the facts of the present case.
17. In Akhil Chit and Finance (P) Ltd. (supra), a learned Single Judge of
this Court (Hon'ble Ms. Sunanda Bhandare, J.) held that on a plain reading
of sub-rule (3) of Rule 2 of Order XXXVII and sub-rule (6)(a) of Rule 3 of
Order XXXVII of the Code of Civil Procedure, it was plain that
once the suit was admitted and registered under Order XXXVII and the
defendant had failed to appear or seek leave to defend, it was not open to the
trial court to direct fresh summons to be issued to the defendant treating the
suit as one under the general provisions, and the plaintiff under the aforesaid
rules was entitled to judgment forthwith. The aforesaid decision has no
application to the facts of the present case as the present case is not a case
where the plaintiff has not entered appearance.

18. In M/s. Vijaya Home Loans Ltd. (supra), it was held that as the
defendants had failed to enter appearance within ten days of the service of
the summons upon them by publication, the allegations made in the plaint
shall be deemed to be admitted under sub-rule (3) of Rule 2 of Order
XXXVII CPC, entitling the plaintiff company to a decree for the suit
amount. This case again has no application to the facts of the present case,
as the defendant has entered appearance in the present case.
19. To the same effect is the decision of this Court in U.K. Paints (India)
Ltd. (supra), wherein it was held that a summary suit under Order XXXVII
CPC has to be decreed if the defendant does not enter appearance within ten
days of service upon him.
20. The ratio of the case of Shri Rane Parkash (supra) is also of no
assistance to the plaintiff. In the said case, summons for judgment were duly
served on the two addresses given by the defendant. The application for
leave to defend was not filed within the statutory period of ten days, but was
filed after nine months. Dismissing the application, the Court held that on
facts the delay in filing of the leave to defend application was deliberate
and a result of callousness and utmost negligence on the part of the
defendant's officers which they wanted to cover up by filing this
application.
21. In the case of M/s. Industrial Medical Engineers (supra), a decree was
passed against the defendants who failed to enter appearance by the trial
court which was sought to be challenged in the High Court. A learned
Single Judge of the High Court dismissing the revision petition held that no
cogent reason had been disclosed to doubt that the signature on the AD card
was of a person having control on the management of the partnership
business. It was observed that the Postman is an independent agency whose
report should ordinarily be accepted. In the instant case, this question does
not arise for consideration at all, in as much as the defendant does not
dispute that it was served on 5th December, 2005 and again on 24th January,
2006.
22. Adverting next to the plea of the defendant that the application for
entering appearance was filed by the defendant by way of abundant
caution and that service of summons was not proper, reliance was placed by
learned counsel for the defendant upon two decisions of this Court in Hans

Raj vs. Lakhi Ram AIR 2005 DELHI 87 and New Bank of India vs. M/s.
Master Steel Marketing Co. 1995 III AD (DELHI) 957.
23. In the case of New Bank of India (supra), relying upon its earlier
decision in Punjab and Sind Bank v. Ramji Das Khanna, AIR 1984 Delhi
175, this Court held that service on the defendants was not complete by mere
publication. Defendants could not have in the absence of plaint and
documents, applied for leave to defend and for that reason alone, the
judgment and decree of the trial court was liable to be set aside under the
provisions of Order XXXVII Rule 4 and unconditional leave granted to the
defendants to contest the suit.
24. In the case of Hans Raj (supra) also, the ex parte decree was set aside
under Order XXXVII Rule 4, CPC on the ground that non-service of
summons under the provisions of Order XXXVII would by itself be a
special circumstance within the meaning of Rule 4 of Order XXXVII,
entitling the defendant to ask for setting aside the decree. A learned Single
Judge of this Court in paragraph 6 of the judgment held as follows:
6. ..........................................In a suit brought under O.37, CPC, it is all
the more important for the plaintiff to show that the fact that the suit was
filed under summary procedure was specifically brought to the notice of the
defendant because in these cases he has to put an appearance within a period
of ten days. There is nothing on record to show that either the summons
were tendered to the wife of the petitioner or she was told that defendant has
to appear before Court within a period of ten days. A perusal of the order
sheets reveal that on several dates either the Process fee was not filed by
the plaintiff or annexures were not furnished as a result of which summons
could not be issued. As regards substituted service it is clear from the
perusal of copy of the newspaper Statesman dated 21-10-1995 that copy of
the annexures namely the alleged loan agreement dated 24-3-1994 were not
published in the newspaper. While dealing with the service of summons in
the suit under O.37, CPC, this Court in the case of Punjab and Sind Bank v.
Ramji Das Khanna, AIR 1984 Delhi 175 took the view that where a process
server has affixed only the copy of summons without affixing the copy of
plaint and annexures thereto and the Registrar of the Court has not held any
enquiry to determine whether service under the circumstances was
sufficient, the service of summons is insufficient and it is a sufficient
circumstance to set aside a decree. The Court took note of relevant rules of
the CPC and the High Court rules in this regard. O.37, CPC specifically
provides that in a suit under O.37, CPC, the plaintiff shall together with the

summons under Rule 2, serve the defendant with a copy of the plaint and
annexures thereto. Thus where only summon have been affixed without
affixing copy of the plaint and annexures thereto, the service is not in
accordance with the provisions of O.37, Rule 3(1) CPC and this would be a
sufficient ground to set aside the decree. The same view is taken by another
bench of this Court in the case of New Bank of India v. M/s. Master Steel
Marketing Co., 1995 (3) AD (Delhi) 957. It was a case of the substituted
service. (sic.). It was held that where only copy of summons was published
without publishing copy of the plaint and annexures thereto, the service was
not in accordance with law.....................................
25. A bare glance at IA No.461/2006 shows that in paragraph 1 of the
plaint itself, it has been stated that the defendant-Bank was served with the
summons of the present suit in the evening of 5th December, 2005 at its
Karol Bagh branch, but has not been served with a complete paper book. It
is further stated that however, keeping in view the technicalities and as an
abundant caution, the defendant bank is entering appearance in the said
suit. Much emphasis has been laid by the plaintiff on the fact that the
defendant was served in the morning and not in the evening of 5th
December, 2005, though nothing much to my mind turns upon the same.
The fact remains that the defendant was not served with the complete paper
book and in IA No.461/2006 it was twice reiterated by the defendant-Bank
that only copy of the plaint and summons were served and that documents
and annexures to the suit had not been served and, therefore, service under
Order XXXVII was not proper.
26. The plaintiff in its reply to the aforesaid applications has admitted that
the summons were served to the defendant on 5th December, 2005, but has
nowhere stated that documents and annexures were served alongwith the
plaint nor it has disputed the fact that the office of the counsel was in the
process of shifting. The summons were served on the defendant on 5th
December, 2005. The defendant should have entered appearance by 15th
December, 2005. The Court closed down for the winter vacation on 21st
December, 2005 and reopened on 1st January, 2006. The application
entering appearance was filed on 2nd January, 2006. Thus, the delay at the
most was for a period of five days, that is, from 16th December, 2005 to 21st
December, 2005. Further, the defendant was again served with summons on
24th January, 2006 obviously on the assumption that the summons had not
been properly served on the defendant which, in fact, they were not, as
copies of documents and annexures had not been furnished to the defendant.

27. In the aforesaid circumstances, to my mind, sufficient cause has been

made out by the defendant-Bank for condonation of delay in entering
appearance. In the circumstances, delay is condoned subject, however, to
the payment of Rs.2,000/- as costs, which shall be tendered by the defendant
to the Delhi Legal Services Authority. IA Nos. 461/2006 & 462/2006 stand
disposed of accordingly.
IA No.7884/2006
28. Adverting next to the defendant's prayer for treating the present suit as
an ordinary suit, the following grounds were sought to be urged in interim
application bearing No.7884/2006:
(i)
Service of the summons was not proper and, therefore, the suit was
liable to be treated as an ordinary suit.
(ii) By order dated 9th November, 2005 in IA No.8147/2005, legible
copies were directed to be filed within four weeks by the plaintiff. The said
order has not been complied with by the plaintiff till date. Legible copies
have not been filed by the plaintiff or supplied to the defendant.
(iii) Prior to the registration of the suit, the plaintiff had been taking
various adjournments. Ultimately, vide order dated 9th November, 2005,
the Court directed the plaint to be registered, but there was no order passed
for the registration of the suit under the provisions of Order XXXVII nor any
direction was given that the summons be issued in the prescribed form. The
presumption, therefore, arises that it was the mistake of the Registry when
they sent the summons indicating the same to be under Order XXXVII,
whereas, in fact, the Court never issued summons under the provisions of
Order XXXVII.
(iv) The provisions of Order XXXVII are mandatory in nature and any
departure from the said provisions will render non-maintainable the suit
under Order XXXVII. It is not open to the plaintiff to file an ordinary suit
in the garb of a suit under Order XXXVII.
29. In the above context, reliance was placed by learned counsel for the
defendant on a decision of the Madhya Pradesh High Court in Gwalior
Distributing Co. Lashkar and another vs. Mrs. Kanta Gupta AIR 1978
MADHYA PRADESH 199 and of this Court in M/s. Khera Handloom
Supply vs. M/s. O.B. Exports and others 1989 (2) DELHI LAWYER 82
(DB). The said reliance, in my view, is entirely misplaced. In Gwalior
Distributing Co. (supra), all that was held by the Madhya Pradesh High
Court was that the plaintiff cannot ask for a suit not falling under Order
XXXVII to be tried as a summary suit. I do not think that there can be any

dispute with this proposition of law. Indubitably, it is so. But it was so

stated with reference to the provisions of sub-rule (2) of Rule 1 of Order
XXXVII and it is difficult to conjecture how the said finding is of any
relevance in the present case. The defendant merely alleges that the Court
did not issue summons under Order XXXVII and hence the suit must be
treated as an ordinary suit. There is a subtle but marked distinction between
the two.
30. In the case of M/s. Khera Handloom Supply (supra), reliance was
placed by counsel for the defendant upon the following observations made
by a Division Bench of this Court (Hon'ble Mr. Justice B.N. Kirpal and
Hon'ble Mr. Justice Y.K. Sabharwal as their Lordships then were):
11. ................................................. The consequence of non-observance of
Order 37 Rule 2 would, in our mind, be that the suit will have to be regarded
as an ordinary civil suit and not one which is filed under Order 37. Nonobservance or non-compliance with the provisions of Order 37 rule 2 would
not result in the suit being dismissed but must result in the Court regarding
the suit as having been filed not under the said provisions of Order 37 but as
an ordinary suit. To this extent, therefore, the contention of the learned
counsel for the defendants is correct, namely, that Order 37 rule 2 is a
mandatory provision which has to be complied with.
31. I am respectfully bound by the above law laid by the Division Bench,
but it cannot be read shorn of the context in which it was made. A bare
glance at paragraph 15 of the judgment shows that the Division Bench
observed further that the provisions of Order XXXVII Rule 2 being
procedural in nature, the requirement of the said provisions would be
satisfied if there has been substantial compliance of the same. It is beyond
the pale of controversy that in the present case there has been substantial
compliance with the provisions of Order XXXVII. The mere fact that the
summons were not properly served upon the defendant cannot lead to the
conclusion that the suit filed by the plaintiff under Order XXXVII must be
treated as an ordinary suit. Likewise, the fact that there was an omission by
this Court to register the suit as one under Order XXXVII can by no stretch
of imagination confer an advantage upon the defendant and operate to the
prejudice of the plaintiff. The defendant itself was not misled by the same,
in as much as the defendant treated the suit as a suit under Order XXXVII
and entered its appearance, albeit belatedly. It cannot now be heard to say
that the suit be treated as an ordinary suit. The application of the defendant
praying for the aforesaid relief is, therefore, liable to be rejected.

32.

IA No.7884/2006 is accordingly dismissed.

33. Plaintiff shall be at liberty to move an application for service of

summons for judgment upon the defendant in accordance with law. It is ,
however, deemed expedient to record that no observations made in the
present order shall be taken into account or construed as an expression of
opinion at the time of consideration of the application for leave to defend
when such application is filed by the defendant in response to the summons
for judgment, and that such application when filed shall be considered
entirely on its own merits.
CS(OS) No.1429/2005
List the case on 8.1.2007 for further proceedings.
Sd/REVA KHETRAPAL, J.