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2018 (12) TMI 1192 - HC - Indian LawsDishonor of cheques - complaint u/s 138 of the Negotiable Instruments Act, 1881 - Maintainability of summary suit against LRs - Time Limitation - difference in amount claimed in the suit and amount due - Held that - The pleadings in the present suits are clear to the effect that ₹ 3 crores is claimed as the principal amount and ₹ 84 lacs is claimed towards the interest from 1st April, 2016 till the date of filing of the suit @12% per annum. The pleading is clear and categorical. It brooks no ambiguity. A reading of the said pleading shows that it is in accordance with the instrument issued by Late Mr. Dhingra i.e. a cheque of ₹ 3 crores. This, objection is also not tenable - The leave to defend, therefore, does not raise any triable or valid defence. Limitation - Held that - The question of limitation is not being gone into as the summons for judgments were served on the Defendants on 6th November, 2018 and first filing of the leave to defend was on 12th November, 2018. Though, there was a refiling of the said application, the date of filing of the said application would have to be construed as 12th November, 2018. The objection of limitation is, thus, rejected. The suit is thus decreed.
Issues Involved:
1. Maintainability of the suit under Order XXXVII CPC against the legal representatives (LRs) of the deceased. 2. Validity of the claim amount including principal and interest. 3. Timeliness and validity of the leave to defend application. 4. Execution of the decree against the assets of the deceased. Issue-Wise Detailed Analysis: 1. Maintainability of the Suit under Order XXXVII CPC Against the Legal Representatives (LRs) of the Deceased: The Plaintiff filed a suit under Order XXXVII CPC seeking recovery of ?3 crores as principal and ?84 lakhs as interest. The Defendants, being the LRs of the deceased Mr. Virendra Dhingra, contended that a summary suit is not maintainable against them. They relied on judgments from the Bombay High Court and Delhi High Court. However, the Plaintiff countered with judgments from the Division Bench of the same courts, which clarified that Order XXXVII suits are indeed maintainable against LRs as the right to sue survives. The court cited the relevant portion of the judgment in *Bank of India v. Industrial Polymer* and *Sarla Devi v. Daya Ram*, affirming that a summary suit can be filed against LRs and the decree can be executed to the extent of the deceased's estate in their hands. Thus, the court concluded that the suit is maintainable against the LRs of Late Mr. Virendra Dhingra. 2. Validity of the Claim Amount Including Principal and Interest: The Plaintiff claimed ?3 crores as principal and ?84 lakhs as interest from 1st April 2016 till the date of filing the suit. The Defendants argued that the suit is not maintainable under Order XXXVII CPC as the claimed amount exceeds the cheque amount of ?3 crores. The court referred to the judgment in *IFCI Factors v. Vasudev Rao & Anr.*, which emphasizes strict construction of pleadings in summary suits. However, the court found the Plaintiff's pleadings clear and categorical, stating that the principal amount is ?3 crores and the interest is claimed separately. The court ruled that this objection by the Defendants was not tenable. 3. Timeliness and Validity of the Leave to Defend Application: The Defendants filed a leave to defend application, which the Plaintiff objected to as belated. The court noted that the summons for judgment were served on the Defendants on 6th November 2018, and the first filing of the leave to defend was on 12th November 2018. Despite a re-filing, the court considered the initial filing date and rejected the objection of limitation, thereby accepting the leave to defend application as timely. 4. Execution of the Decree Against the Assets of the Deceased: The court emphasized that the issue of whether the LRs came into possession of Mr. Dhingra’s assets or whether the decree is executable against such assets is not being decided in this suit. The court highlighted that the defenses available to the LRs under Section 52 CPC would continue to be available during the execution of the decree. Thus, the court decreed the suit for the principal sum of ?3 crores with interest at 6% per annum from the date the cheque was issued (26th December 2017) but did not delve into the specifics of asset attachment or sale. Conclusion: The court decreed the suit in favor of the Plaintiff for the principal sum of ?3 crores with interest at 6% per annum from 26th December 2017, while clarifying that the execution of the decree against the assets of the deceased would be subject to the defenses available under Section 52 CPC. All pending applications were disposed of, and no orders as to costs were made.
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