JUDGMENT - F.I. REBELLO, J:---The plaintiff Bank, on an application by the defendant had issued to the defendant a Credit Card. It is the contention of the plaintiff that the defendant has used the Card. However, he has failed and neglected to pay the amounts due and payable to the bank in terms of the agreement between the bank and the defendant. The agreement, it is contended, are the terms and conditions which the defendant agreed to abide by at the time he applied for the card. It is contended that a holder of a card can purchase goods/material by using the card and without actual payment of money. The bank in turn reimburses the seller for the value for which the card was used. The card contains an upper limit to the extent which it can be used. As per the terms and conditions on failure to pay the amount within the stipulated date the holder of a card has to pay a service charge depending on the contract or as per the policy followed by the bank from time to time. The amount so payable, it is contended, is, therefore, under an agreement which is a liquidated amount and, therefore, the suit is maintainable as a summary suit.

2. On behalf of the defendants it is contended that the suit as filed cannot be maintained as a summary suit as the use of credit facility is in the nature of a cash credit facility given by a bank. Amounts in an account in cash credit facility is in nature of a Current Account and no interest is payable on it. It is contended that in so far as the service charge is concerned, it is in the nature of a penalty under section 74 of the Indian Contract Act, 1872 and the bank will have to prove the same. It is also contended that the interest charged is usurious and consequently the provisions of Usurious Loans Act will be attracted. Merely by labelling it as a service charge would not make it a service charge, as service charges are liable to be taxed under the Service Tax Charges Act. Under the said Act the banks are required to pay the advance tax and the tax deducted at source has to be debited to the account of the credit card holder. For all these reasons, it is contended that the use of a card does not constitute an agreement in writing to pay debt or liquidated amount and as such the suit cannot be treated as a summary suit and the defendant is entitled to unconditional leave to defend.

3. As the nature of the challenge to the maintainability of the suit as a summary suit itself was in issue and considering the fact that many banks/financial institutions are issuing credit cards, notice was issued to all those who desired to be heard. Arguments have been advanced on behalf of some banks, which has also been taken into consideration for deciding the issue.

4. On behalf of the Citibank N.A., who are plaintiffs in the Summons for Judgment No. 825 of 1998 in Summary Suit No. 3318 of 1998, it is contended that the question of maintainability of a suit as a summary suit depends on the facts and material on record in each case and as the facts and material in each case may not be similar no generalization can be made in relation to claims arising out of the use of credit cards. Terms of issue of the credit cards, any contract/agreement between the parties, the relevant correspondence if any between the parties, will have to be considered in each case for grant of relief and as such no general rule can be laid down. It is contended, that in their suit the contractual provisions and material on record are such that the suit is maintainable as a summary suit.

5. Mr. Bookwala, who appeared for Bank of Baroda contends that there are three contracts in the use of a Credit Card. A contract between the bank and the seller; Bank and the holder of a credit card and the holder of the credit card and seller. It is contended that the 2nd contract is a contract in writing and the third contract becomes a contract in writing when the holder of the credit card signs the purchase slip. He has referred to the judgment in (

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