It is well settled that a suit filed for recovery of amount covered under the dishonoured cheques should not be stayed under Section 10 of the Code of Civil Procedure solely on the ground that Criminal proceedings under Section 138 of the Negotiable Instruments Act has been instituted.
2. In this obtaining factual matrix the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act before the competent Court for prosecuting the defendant/non-applicant. In spite of such proceedings having been initiated the petitioner did not get payment of outstanding amount in question. As no attempts were made by the non-applicant to liquidate the amount under compelling circumstances the petitioner was obligated to file the suit for recovery of the amount of Rs. 1,09,309/- which included the principal sum of Rs. 70,980/- and interest at the rate of 18% per annum.
3. After notice of the suit was received by the defendant he moved an application under Section 10 of the Code of Civil Procedure for stay of the suit. It was setforth in the said application that a complaint case under Section 138 of the Negotiable Instruments Act has also been filed against him and as the cause of action is the same the suit should be stayed. The petitioner filed reply to the said application resisting the prayer of the non-applicant. The learned trial Judge upon hearing the learned counsel for the parties allowed the application and directed for stay of the suit.
4. I have heard Miss Jai Laxmi Aiyar, learned counsel for the petitioners and Mr. Umesh Shrivastava, learned counsel for the respondent.
5. It is contended by the learned counsel for the petitioners that the learned trial Judge has fallen into error by granting stay of the suit as the same runs counter to the language used under Section 10 of the Code of Civil Procedure. Her submission is that Section 10 of the Code contemplates stay of a suit when the matter is directly and substantially in issue in a previously instituted suit between the parties, or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court and that being not the case, no order of stay should have been passed. It is her further submission that criminal proceeding is not a suit, the concept of stay is not attracted. She has placed reliance on the decision rendered in the case of Sai Udyog (Pvt.) Ltd., Raipur and Ors. v. Central Bank of India, Raipur, AIR 1998 MP 191, wherein the learned Single Judge has held as under:--
"If the exigencies demand, cause of action or defence for both Civil and Criminal proceedings is the same and the defence of the defendant/accused is likely to suffer serious prejudice because of particular/peculiar facts of the case, the Court can stay the Civil proceedings. As a principle of law, it cannot be laid down that whenever a Criminal case is instituted, then the civil suit on the same cause of action must be stayed. The Court may be guided by the attending circumstances. Where a criminal action provides a cause of action for the civil action, then the Court may if the facts so demand, stay proceedings in the civil suit."
(Quoted from the placitum)
6. Resisting the aforesaid submission it is canvassed by Mr. Shrivastava that the application was not filed exclusively under Section 10 of the Civil Procedure Code but it was filed under Section 151 of the Code. In support of his submission he has placed reliance on the decision rendered in the case of New Bank of India v. Radhakishan & Co. and Ors., 1988 JLJ 687, wherein the learned Single Judge has held that where a civil suit criminal case arises out of same cause of action, the Civil suit should be stayed. The rival contentions need not detain me for long as the Apex Court in the decision rendered in the case of State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd., 1996 (II) MPWN Short Note 61 (P. No. 92) has held that suit for recovery of amount of dishonoured cheques cannot be stayed even though Criminal proceeding is pending. I may profitably quote their Lordships :
"It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal Court would deal with offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. But since the defence has already been filed nothing survives in this matter."
7. In view of the aforesaid enunciation of law it is well settled that a suit filed for recovery of amount covered under the dishonoured cheques should not be stayed under Section 10 of the Code of Civil Procedure solely on the ground that Criminal proceedings under Section 138 of the Negotiable Instruments Act has been instituted.
8. In view of the preceding analysis, I am of the considered view, that the order passed by the learned trial Judge is vulnerable and the same is accordingly set aside.
9. Resultantly the civil revision is allowed. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.
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Madhya Pradesh High Court
Nemichand Gangwal And Anr. vs Harish Kumar Jhanwar on 23 March, 2000
Equivalent citations: 2000 (3) MPHT 194
1. The petitioner as plaintiff filed civil suit for recovery of Rs. 1,09,309/-against the defendant/non-applicant in the Court of VIIth Additional District Judge, Bhopal. It was pleaded in the plaint that the plaintiff had a number of share certificates which he wished to dispose of and for this purpose contacted the defendant who dealt with the purchase of shares. After due discussion the petitioner handed over the share certificates to the defendant and the defendant agreed for buying the shares for a total of Rs. 1,23,143/- and the defendant handed over a bill signed by him to the petitioner. Since the share certificates pertained to different companies, the defendant handedover different cheques drawn on different banks. However, when the petitioners deposited the cheques in his account in the State Bank of India only one cheque amounting to Rs. 36,562.50 was debited and the rest were dishonoured.2. In this obtaining factual matrix the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act before the competent Court for prosecuting the defendant/non-applicant. In spite of such proceedings having been initiated the petitioner did not get payment of outstanding amount in question. As no attempts were made by the non-applicant to liquidate the amount under compelling circumstances the petitioner was obligated to file the suit for recovery of the amount of Rs. 1,09,309/- which included the principal sum of Rs. 70,980/- and interest at the rate of 18% per annum.
3. After notice of the suit was received by the defendant he moved an application under Section 10 of the Code of Civil Procedure for stay of the suit. It was setforth in the said application that a complaint case under Section 138 of the Negotiable Instruments Act has also been filed against him and as the cause of action is the same the suit should be stayed. The petitioner filed reply to the said application resisting the prayer of the non-applicant. The learned trial Judge upon hearing the learned counsel for the parties allowed the application and directed for stay of the suit.
4. I have heard Miss Jai Laxmi Aiyar, learned counsel for the petitioners and Mr. Umesh Shrivastava, learned counsel for the respondent.
5. It is contended by the learned counsel for the petitioners that the learned trial Judge has fallen into error by granting stay of the suit as the same runs counter to the language used under Section 10 of the Code of Civil Procedure. Her submission is that Section 10 of the Code contemplates stay of a suit when the matter is directly and substantially in issue in a previously instituted suit between the parties, or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court and that being not the case, no order of stay should have been passed. It is her further submission that criminal proceeding is not a suit, the concept of stay is not attracted. She has placed reliance on the decision rendered in the case of Sai Udyog (Pvt.) Ltd., Raipur and Ors. v. Central Bank of India, Raipur, AIR 1998 MP 191, wherein the learned Single Judge has held as under:--
"If the exigencies demand, cause of action or defence for both Civil and Criminal proceedings is the same and the defence of the defendant/accused is likely to suffer serious prejudice because of particular/peculiar facts of the case, the Court can stay the Civil proceedings. As a principle of law, it cannot be laid down that whenever a Criminal case is instituted, then the civil suit on the same cause of action must be stayed. The Court may be guided by the attending circumstances. Where a criminal action provides a cause of action for the civil action, then the Court may if the facts so demand, stay proceedings in the civil suit."
(Quoted from the placitum)
6. Resisting the aforesaid submission it is canvassed by Mr. Shrivastava that the application was not filed exclusively under Section 10 of the Civil Procedure Code but it was filed under Section 151 of the Code. In support of his submission he has placed reliance on the decision rendered in the case of New Bank of India v. Radhakishan & Co. and Ors., 1988 JLJ 687, wherein the learned Single Judge has held that where a civil suit criminal case arises out of same cause of action, the Civil suit should be stayed. The rival contentions need not detain me for long as the Apex Court in the decision rendered in the case of State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd., 1996 (II) MPWN Short Note 61 (P. No. 92) has held that suit for recovery of amount of dishonoured cheques cannot be stayed even though Criminal proceeding is pending. I may profitably quote their Lordships :
"It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal Court would deal with offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. But since the defence has already been filed nothing survives in this matter."
7. In view of the aforesaid enunciation of law it is well settled that a suit filed for recovery of amount covered under the dishonoured cheques should not be stayed under Section 10 of the Code of Civil Procedure solely on the ground that Criminal proceedings under Section 138 of the Negotiable Instruments Act has been instituted.
8. In view of the preceding analysis, I am of the considered view, that the order passed by the learned trial Judge is vulnerable and the same is accordingly set aside.
9. Resultantly the civil revision is allowed. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.
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