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madhu mittal (director)     07 September 2010

Suit under order 37 CPC

There is a consumer loan of Rs.25000/- to a borrower on 1.1.2008 in Rajsthan, guaranteed through guarantee deed which is on Rs. 10/- stamp paper. In addition to this, on a simple paper named terms and conditions, it is written that in case of default interest will be charged @36% p.a. Now my first query is whether a suit under Order 37 CPC maintainable on a guarantee deed of Rs. 10/-. And second query is if it is found inadequate at later stage, can it be curable under Order 37 also, as it is in normal suits. And third one is whether interest can be charged and claimed  @36% p.a. as agreed at the time of giving loan and signed by both borrower and guarantor in a suit under Order 37 CPC.



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 9 Replies

M. A. Khan (advocate)     07 September 2010

If any contract, or promissory note is obtained from borrower, than on the basis of documents, summery suit can be filed.  Stamp  duty upon a dcoument depend and varies with the state.  You can find out from local law of state the stamp duty upon deed of guarantee.  Yes agreed interest can be charged.   Adv. khan Mumbai

madhu mittal (director)     07 September 2010

Sir, I enquired that in Rajasthan there should be at least 100/- stamp paper. Now my question is how to rectify it, before presenting the suit or even after presenting the suit whether it can be cured when other opposite party raises any objection

Ravikant Soni (LAWYER IN JAIPUR)     07 September 2010

Madhu in Rajasthan no need the stamp to be of 100 Rs. You can file case under order 37.

I m also from rajasthan.

You can call me at +919414400250

pravir singh (advocate)     09 September 2010

what is the proper forum to file a suit in o. 37? can it be file as small cause case in j.s.c.c court or file a regular suit in civil judge court.

R.Ranganathan (Advocate)     10 September 2010

The suit has to be filed in the civil court having territorial and pecuniary jurisdiction. Further Guarantee is only an agreement and it requires the same stamp value as that of an agreement. No need of Rs. 100/-.

G. ARAVINTHAN (Legal Consultant / Solicitor)     15 September 2010

yes maintainable as the defendant agreed for the same

Tarun Thakur (advocate)     19 September 2010

o. 37 does not apply to agreement on stamp paper.. it applies on bills of exchange, hundies, cheques, promissory  notes.. stamp papers are not covered in o .37 .

 

it can be treated as a regular suit for recovery.

Tarun Thakur (advocate)     19 September 2010

you have admitted that it is signed by both borrower and guarantor  so 36 % has to be paid

Adesh Kumar Sharma (Senior Associate Lawyer)     20 October 2010

Dear Ms. Mittal,

The summary suit based on the deed is maintainable. There are a lot of judgment on this issued that agreement,deeds, even purchase bills constitute the cause action to file a suit under order 37 of CPC. Further if the court find any technical defect to entertain the suit under order 37 then it can be treated as ordinary suit for recovery. But this is a very rare situation. 

Your last question I wud suggest you to go through the provision of  "The Interest Act  1978"  and find out that under which section your case is covered. Further there are judgments of supreme court and high courts on the quantum of interest awarded. So you go through the judgment to substantiate your case.

Thanks.


Attached File : 41 41 the interest act 1978.doc downloaded: 289 times

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