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IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
Mafatlal Finance Limited..... Plaintiffs.
Versus
Express Industrial Services Private Limited..... Defendants.
Advocates appeared :
P.K. Samdani with Desai i/by Manilal Kher Ambalal Co., for plaintiffs.
Ms. Rajani Iyer i/by Singhania Co., for defendants.
Held, that the claim for interest on the amount of security was not based on any agreement or by any enactment. The issue in question related to the jurisdiction of the Court to entertain the suit as a summary suit. This is not merely a procedural requirement. It is a requirement for the C9urt to assume jurisdiction and grant reliefs in a special category of suits which are designated as summary suits. In that context Order XXXVII has specifically set out that when such a suit is filed it is incumbent on the plaintiff to aver that no relief is claimed which is not falling within the ambit of the rule. In other words the relief must be in terms of Rule 2 of Order XXXVII. In the instant case the claim for interest was not based on any agreement or by any enactment. Even if it was contended on behalf of the counsel for the plaintiffs that by virtue of the provisions of the Interest Act on demand being made they are entitled to interest, that would be a matter for investigation and what interest the Court may ultimately award. That does not mean that such claim for interest under the Interest Act is interest pursuant to an agreement or pursuant to an enactment. As the interest claimed was not pursuant to any agreement or was not recoverable pursuant to any statute, that part of the relief would not fall within the summary procedure and no summary suit could have been filed insofar as the interest portion is concerned. The defendants entitled to unconditional leave to defend. Suit transferred to the list of commercial causes. 1998 (1) LJ 793, Appeal No. 1060/1986 in summons for judgment No. 307/86, dated 24.2.1987, Randerian & Sing Pvt. Ltd. v. Indian Overseas Bank, arising out of summons suits No. 3212/1989-Relied on.
2. A brief narration of facts may be necessary to deal with the issue which has been raised on behalf of the plaintiffs herein in so far as leave to defend is concerned.
The plaintiffs admittedly were occupying certain premises belonging to the defendants between the period 9th June, 1995 to 14th October, 1995. In terms of the agreement between the plaintiffs and the defendants the compensation payable was Rs. 5 lacs per month. The plaintiffs had requested the defendants permission to occupy the premises for a period of four months from 1st April, 1995 till 31st July, 1995. By letter dated 15th March, 1995 the plaintiffs sent a cheque for Rs. 10 lacs being advance rent for occupation of the premises. The defendants were informed that the balance of Rs. 10 lakhs would be paid on 1st April, 1995 along with the deposit. The defendants were also informed that the plaintiffs plan to occupy the office from 3rd April, 1995 for a period of four months. The other facts are not material as they are not required for the purpose of deciding the issue in controversy. I will now advert to the reply filed on behalf of the defendants for the defences which have been raised by them. In the first instance the defendants have contended that the suit cannot be maintained as a summary suit as there is no agreement in writing between the plaintiffs and the defendants. It is further contended that the particulars of claim annexed to the plaint do not correctly reflect the claim of the plaintiff and no relief of any nature can be granted to the plaintiffs and in the light of that matter summons for judgment ought to be dismissed and unconditional leave has to be granted to the defendants to defend the suit. It is further contended that the monthly compensation would be Rs. 10 lakhs per month from 1st April, 1995 and that the plaintiffs would pay for other services available like telephone, telex, fax, etc. It is then contended that at the request of the plaintiffs the defendants have carried out certain work and incurred expenditure of Rs. 6.34 lakhs which the plaintiffs have to reimburse to the defendants. It is also contended that the defendants are entitled to forfeiture of the entire deposit. Lastly, it is contended that the dues from the plaintiffs to the defendants up to October, 1995 aggregate to Rs. 83,00,102/-. I have merely referred to the said defences. To my mind the various defences except the first defence at this stage need not be gone into.
3. The only question therefore that has to be decided is whether the suit as framed is maintainable as a summary suit. Secondly, the contention on behalf of the plaintiffs that even if a part of the relief if it does not fall within the ambit of the summary procedure, it is always open to the Court to grant conditional leave in so far as that part of the claim which could be covered by a summary procedure and unconditional leave in so far as that which would not fall. Learned Counsel for the purpose has relied on Order XXXVII, Rule 3(4) of the Code of Civil Procedure as amended by this Court. Learned Counsel for the purpose has relied on a judgment of a learned Single Judge of this Court in (Banque Indosuez v. M/s. Neptune Exports others)1, in Summons for Judgment No. 516 of 1997 in Summary Suit No. 813 of 1997 decided on 8th February, 1999 and another judgment of the same learned Single Judge in (Bank of Baroda v. M/s. Dawood Company others)2, in Summons for Judgment No. 580 of 1998
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