Delhi High Court Allows Cure of Procedural Defect, Directs Fresh Decree After Merits Found for Plaintiff

A bench of Justice Anil Ksheterpal and Justice Amit Mahajan heard RFA (COMM) 17/2024, an appeal against a judgment of the Learned District Judge, Central District, Tis Hazari Court, which had dismissed a recovery suit for non‑compliance with Order VI Rule 15A of the Code of Civil Procedure, 1872. The appeal arose from a commercial dispute concerning unpaid dues for goods supplied and the maintainability of pleadings in commercial suits.

The High Court set aside the impugned judgment to the extent it dismissed the suit and granted the plaintiff liberty to cure the procedural defect within four weeks, directing the trial court to pass a fresh decree in accordance with the findings already returned on the merits. The Court explained that while Order VI Rule 15A required attestation and a Statement of Truth in commercial suits and was “couched in mandatory terms,” the omission in the present case was curable and did not justify extinguishing the substantive right of the plaintiff after full trial. The Court, in its reasoning, observed: “In such circumstance, to dismiss the suit, solely on account of a curable procedural defect, particularly and pertinently, when the suit was originally instituted as a summary suit, which later was treated commercial suit, would amount to elevating procedure over substance. Pertinent to note it is that the omission to file a Statement of Truth, though a serious procedural irregularity, remains a defect capable of rectification. Notably, the said defect, in the facts of the present case, neither strike at the very jurisdiction of the Court nor does it render the proceedings void ab initio.” The Court also noted that “procedural law, is merely a handmaid of justice,” and emphasised that defects of form which did not cause irremediable prejudice should not eclipse substantive adjudication.

Background

The dispute originated from sale transactions between the plaintiff — sole proprietor of M/s Garg Papers  and the defendant, who purchased craft paper on credit over several years. The plaintiff produced a running account showing payments and outstanding balances; the ledger reflected receipts aggregating Rs. 64,42,000 and an alleged outstanding principal of Rs. 34,50,580. The defendant issued twelve cheques dated 08.05.2017 in settlement, most of which were dishonoured; one cheque was returned with a memo stating “account closed.” The plaintiff issued a legal notice dated 17.05.2017, initiated proceedings under Section 138 of the Negotiable Instruments Act and filed a recovery suit for Rs. 45,35,025 (principal plus interest). The suit was initially filed as a summary suit under Order XXXVII and later treated as a commercial suit; after the original defendant’s death her legal heirs were brought on record with limited liability confined to the inherited estate.

The trial judge framed five issues, found the suit not barred by limitation, and on merits held that the plaintiff was entitled to Rs. 29,64,404 as principal with 18% interest from 09.05.2017. However, the trial court struck off the plaintiff’s pleadings and dismissed the suit for non‑compliance with Order VI Rule 15A (attestation and Statement of Truth) relying on a Division Bench decision in M/s A V Industries v M/s NEON Electricals Pvt. Ltd. The plaintiff sought leave to cure the defect and argued the omission arose because the suit began as a summary suit; the defendants contended that sufficient opportunity had been afforded and urged dismissal. The High Court distinguished the A V Industries decision on its facts, observed that the omission did not affect jurisdiction or render proceedings void, and directed that the plaintiff be allowed to file the requisite application so that the LDJ could pass a fresh decree consistent with the merits already recorded and determine pendente lite and future interest as appropriate.

Case Details:
Case No.: RFA (COMM) 17/2024
Case Title: MS. SHASHI GARG versus MS. RENU GARG (SINCE DECEASED) THROUGH HER LRS.
Appearances: 
For the Petitioner(s): Mr. Rakesh Kumar, Adv.
For the Respondent(s): Mr. B. N. Gaur, Adv.