UNITED WESTERN BANK LIMITED Vs. MARMAGO STEEL LIMITED

JUDGEMENT

(1.) THE present suit was filed on 30th October, 1995. Summons for Judgment was taken out on 30th December, 1996. Writ of Summons was also stated to be served on 16th December, 1995. Clearly thus Summons for Judgment have not been taken out within six months. Thus under Rule 227 of the High Court. O. S. Rules, the suit ought to have been placed on Board for dismissal. Furthermore. Mr. Sanglikar very fairly points out that there is a mistake about the calculation of interest. In view of the above he points out that it would be necessary to withdraw the present Summons for Judgment and to take out fresh Summons for Judgment after making the necessary amendment in the plaint.

(2.) MR. Madon, learned Counsel appearing for the defendants, on the other hand points out that in view of the gross delay in taking out the Summons for Judgment, the defendants are entitled to unconditional leave. In support of this proposition he cites a judgment of this Court in the case of (Central Bank of India v. Femme Pharma Ltd. and others), A. I. R. 1982 Bom. 67. In the aforesaid judgment in paragraph 4 it is held as follows :

(3.) A perusal of the passages reproduced above shows that Justice Vyas has held that the Court has a discretion to decree the suit ex-parte even if the Summons for Judgment is taken out after six months, if the Court on examination of the defences find the same to be frivolous or of technical nature. Mr. Justice Mody, however, held that Rule 227 does not provide as to what is to happen when the suit is placed on Board for dismissal. It was held that the Court will have a wider discretion now than before and the Court is not bound to dismiss the same. The submissions made by Mr. Sanglikar with regard to the conflict in the view expressed by the two learned Judges do not survive in view of the decision given by a Division Bench of this Court in the case of (M/s. Randerian and Singh (Pvt.) Ltd. v. Indian Overseas Bank), Appeal No. 1060 of 1986 in Summons for Judgment No. 307 of 1986 in Summary Suit No. 3212 of 1985 (S. K. Desai and N. K. Parekh, JJ. ). The Division Bench held as follows: under the Rules of this Court strict conditions are imposed on the defendants in a summary suit. They must file their appearance in Court within a very short specified period and failure to do so entitles the plaintiffs to obtain an ex-parte decree against them. It must logically follow that there must be equally stringent requirements postulated on the plaintiffs. One of these requirements would be that they must not in the suit make a claim not warranted by the contract or under a statutory provision. If it can be demonstrated, as it can be in the instant case, that the plaintiffs have in the plaint made a claim for interest not warranted by the statutory provision or by the contractual document, then the suit must be one which cannot be accepted as a summary suit. Once this is demonstrated, one of two consequences must follow. The first and the more obvious is to grant to defendants unconditional leave to defend the suit and transfer the same to the appropriate cause list long cause, short cause or commercial cause. The present case would fall in the last category. There is another way open and that is for the plaintiffs who are faced with such defence in the affidavits made on the Summons for Judgment to apply for permission to withdraw their Summons for Judgment with liberty to take out a fresh Summons for Judgment after amending the plaint and putting their house in order. Recording of a statement to give up or accept reduced interest is not sufficient. " a perusal of the aforesaid observations of the Division Bench shows that if a claim is made by the plaintiffs in the plaint for interest not warranted by the statutory provision or by the contractual document, then the suit must be one which cannot be accepted as a summary suit. Once this is demonstrated, one of the two consequences must follow. The first and the more obvious is to grant the defendants unconditional leave to defend the suit. The second is to permit the plaintiffs to withdraw the Summons for Judgment with liberty to take out a fresh Summons for Judgment after amending the plaint and putting their house in order.