IMPORTANT POINT
Summary suit – If a reply or defence is allowed to come on record in a summary suit without Leave of Court then distinction sought to be maintained between a Suit normally instituted and Summary Suit under Order XXXVII of CPC stands effaced – Procedural deviation goes to root of the matter.

JUDGMENT :

S.V.N. BHATTI, J.

1. Leave granted.

2. We have heard Advocates Mr. Debesh Panda and Mr. Sanampreet Singh for the parties. The appeal is at the instance of the Plaintiff in Commercial Summary Suit No. 19 of 2020 before the High Court of Judicature at Bombay and challenges the order dated 05.12.2023. To make the narrative brief, the order impugned is excerpted hereunder:

“1. Let the reply to the Summons for Judgment be filed by 20th December, 2023 with a copy to the other side. Rejoinder, if any, be filed by 9th January, 2024 with a copy to the other side.

2. List on 9th January, 2024.”

3. The parties to the civil appeal had business transactions for reasonably good time. The present Commercial Suit is filed to recover the alleged admitted and confirmed total liability of Rs. 2,15,54,383.50/- together with interest at 24% per annum amounting to Rs. 2,38,50,845.00/-.

4. The suit was filed on 15.10.2019 under Order XXXVII of the Civil Procedure Code, 1908 (‘the CPC’). Summons were issued on 15.01.2020, along with the Plaint and Annexures, which have been stated as served on the Defendants on 18.01.2020. On 28.01.2020, the Defendant entered appearance in terms of sub-Rule (3) of Rule 3 of Order XXXVII of the CPC. The Plaintiff filed Summons for Judgment No. 75 of 2021 in Commercial Summary Suit No. 19 of 2020. The Plaintiff alleges that the Summons for Judgment No. 75 of 2021 was served on the Defendant on 11.01.2022. According to the plaintiff, the Defendant ought to have, if advised, filed for leave to defend by disclosing the defence available against the claim in the Summary Suit.

5. Admittedly, instead of filing an Application seeking leave to defend, the Defendant filed an I.A. (L) No. 7771 of 2022 praying for the dismissal of the suit for non-compliance with Section 12A of the Commercial Courts Act. On 08.04.2022, the application was allowed, the parties were referred to mediation, and the Summary Suit was kept in abeyance. The Mediation Report dated 09.02.2023 was filed by the Mediator. The I.A. No. 1353 of 2023 was filed to allow the Plaintiff to amend the plaint and summons for judgment as per the Schedule annexed, and the same was allowed by order dated 29.08.2023. The operative portion reads as follows:

“6. Having heard the learned counsel and having perused the papers and proceedings, the draft amendment as requested by way of praecipe is allowed. Let the amendment to the plane as well as the summons for judgment be carried out within a period of two weeks.

7. Let the amended plane as well as the summons for judgment be served upon the other side within a period of one week thereafter.”

The defendant filed an Application for condoning the delay in applying for leave to defend on 23.01.2024. The said application is still pending before the High Court.

6. By referring to the above chronological undisputed events, Advocate for Plaintiff contends that the step ordered by the High Court, allowing reply to the Summons for Judgment, is procedurally incorrect and unsustainable. The requirement in terms of sub-Rule (5) of Rule 3 of Order XXXVII of the CPC is to file an application seeking leave to file the defence. In the application filed praying for leave, the court decides whether a case for granting leave to defend is made out or not, considering the nature of the recovery. At the present stage, we are not determining whether a case for granting leave is made out or not, but the precise question is whether the court could have permitted filing a reply/defence without even praying for leave, setting out the available defence, etc.

7. To appreciate the procedural objection pointed out by the Plaintiff, the sequence of steps under Order XXXVII Rule 3 sub-Rules (1) to (7) of the CPC is set out as follows:

7.1 On filing the Summary Suit, the plaintiff must serve the defendant with the plaint and annexures, together with the summons.

7.2 The defendant has ten days to enter an appearance, in person or through a pleader, and provide