2000 Supreme(Bom) 764

IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna Smt. Ranjana Desai, JJ.
Bankay Bihari B. Agrawal others.... Plaintiffs.
Versus
Bhagwanji Meghji others .... Defendants.
Reference Summons for Judgment No. 548 of 1998. In Summary Suit Nos. 683 of 1994, 3250 of 1992, Summon for Judgment No. 663 of 1994. In Summary Suit No. 2288 of 1993, Summons for Judgment No. 498 of 1998, in Summary Suit No. 4627 of 1996, Summons for Judgment No. 546 of 1998, in Summary Suit No. 3744 of 1996, Summons for Judgment No. 987 of 1998, in Summary Suit No. 4792 of 1995, Summons for Judgment No. 1010 of 1998, in Summary Suit No 2021 of 1998, Summons for Judgment No. 451 of 1999, in Summary Suit No. 1149 of 1998, Summons for Judgment No. 34 of 1999, in Summary Suit No. 2824 of 1998, Summons for Judgment No. 118 of 1999, in Summary Suit No. 2452 of 1996, Summons for Judgment No. 1047 of 1999, in Summary Suit No. 4242 of 1998, Summons for Judgment No. 202 of 2000, in Summary Suit No. 3121 of 1995, Summons for Judgment No. 203 of 2000, in Summary Suit No. 3081 of 1995, Summons for Judgment No. 300 of 2000, in Summary Suit No. 2451 of 1998, Summons for Judgment No. 528 of 2000, in Summary Suit No. 3949 of 1998, Summons for Judgment No. 530 of 2000, in Summary Suit No. 1174 of 1999, Summons for Judgment No. 635 of 2000, in Summary Suit No. 932 of 1998, Summons for Judgment No. 772 of 2000, in Summary Suit No. 6168 of 1999, Summons for Judgment No. 159 of 2000, Summary Suit No. 2791 of 1999 Summons for Judgment No. 816 of 2000, in Summary Suit No. 3516 of 1998, decided on 27-9-2000.
Advocates appeared:
M.V. Palan, B.S. Chandnani in S.J. No. 548/98 in S.S.No. 683/94, for plaintiff.
H.J. Thacker, R.C. Shah in S.J. No. 548/98 in S.S.No. 683/94, for defendants.
Uday Sinh i/by Mulla Mulla Craigie Blunt Caroe in S.S. No. 3250/92 for plaintiffs.
G.A. Rebello, R.A. Fernandes and M.R. Khatri in S.S. No. 3250/92, for defendants.
Ferzana Z. Behram Kamdin with Parjay Rajmachikar i/by Wadia Ghandy Co. in S.J. No. 663/94 in S.S.No. 2288/93, for plaintiff.
Fredun De Vitre , J.P. Sen i/by Federal Rashmikant in S.J. No. 498/98 in S.S.No. 4627/96, for plaintiff.
Cyrus Avduhiv i/by Mulla Mulla Craigie Blunt and Caroe in S.J. No. 546/98 in S.S.No. 3744/96, for plaintiff.
Milind Vasudev with B.P. Colabawalla i/by Gagrat Co. in S.J. No. 546/98 in S.S.No. 3744/96, for defendants.
Virag Tulzapurkar, Ms. Alpana Ghone i/by Kanga Co. in S.J. No. 987/98 159/2000 in S.S.No. 4792/95 2791/99, for plaintiffs.
S.K. Jain i/by Sanjeev Kanchan Co. in S.J. No. 451/99 in S.S.No. 1149/98, for plaintiffs.
B.P. Colabawalla i/by Hariani Co. in S.J. No. 451/99 in S.S.No. 1149/98, for defendant No. 3.
R.S. Tripathi i/by S.G. Lakhani in S.J. No. 34/99 in S.S.No. 2824/98, for plaintiffs.
Rahul Chitnis i/by Crawford Bayley Co. in S.J. No. 118/99 in S.S.No. 2452/96, for plaintiffs.
Ms. J.P. Thakkar i/by K.S. Jagmag in S.J. No. 1047/99 in S.S.No. 4242/98, for defendants 1 and 3.
A.M. Vernekar in S.J. No. 300/2000 772/2000 in S.S.No. 2451/98 6168/99, for defendants.
R.D. Suvarna in S.J. No. 528/2000 530/2000 in S.S.No. 3949/98 1174/99, for plaintiffs.
Venkatesh Dhonde with Christopher D’Souza i/by A. Mehta Laljee Co. in S.J. No. 635/2000 in S.S.No. 932/98, for plaintiffs.
Darius Khambata with Naval Agarwal i/by Amarchand Mangaldas Suresh A. Shroff Co. in S.J. No. 635/2000 in S.S.No. 932/98, for defendants.
Ms. Manjari Shah with Ms. Jyoti Ghag i/by Motiwalla Co. in S.J. No. 816/2000 in S.S.No. 3516/98, for plaintiffs.
Ms. J. A. Sarkhot in S.J. No. 816/2000 in S.S.No. 3516/98, for defendant.

Headnote:Order XXXVII-Bombay High Court (Original side) Rules, 1980, Rules 221 to 227-Tendency of defendant-To delay trial-But legislature already conscious about such litigants-In commercial matters claim is indefeasible and arrangement for summary procedure is available-Merely because a suit is placed upon the board for dismissal for failure to take out a Summons for Judgment within 6 months, it need not be dismissed. Rule 265 of the 1980 Rules clothes the Chamber Judge with the discretion to enlarge or abridge the time appointed by the Rules, or fixed by any order, for doing any act or taking any proceedings, upon such terms as the justice of the case may require. Thus, there is scope for exercise of judicial discretion depending on the facts and circumstances of the case. Consequently, upon failure to take out the Summons for Judgments within a period of 6 months, as provided by Rule 227, all that would happen is that the suit would appear on the board for dismissal, and the plaintiff is required to satisfy the Chamber Judge as to reasons, if any, which prevented him from taking out the Summons for Judgment within a period of 6 months. If the Judge is not satisfied, then, the suit shall, of course, be dismissed. However, if the Chamber Judge accepts the reasons given by the plaintiff for the delay, then, under Rule 265, he has discretion to excuse the delay in the taking out of the Summons for Judgment "upon such terms as the justice of the case may require". No one has disputed this proposition that delay in taking out Summons for Judgment is always excusable for good reasons and on such terms as the Chamber Judge may decide.

       Order XXXVII-Bombay High Court (Original Side) Rules 1980, Rule 227-Summary suit-Procedure-Delay in summons-Whether defendant entitled unconditional leave to defend-Delay only as per provision under Rule 227 of Rules-No entitlement of unconditional leave-Conditional or unconditional leave, it is to be considered in conjunction with nature of defence-More insolvency as part of plaintiff per se is no valid ground to grant an unconditional leave.- The present Rule 227 merely provides that the suit would be placed on board for dismissal and does not indicate the consequence thereof. The learned Judge, rightly, held that the discretion was wider, and that the Court was not bound to dismiss the suit. However, the learned Judge, without any supporting reason, took the view that the Summons for Judgment had been taken out after delay and unconditional leave was granted to the Defendant to defend the suit while the judgment records factually what was done by the learned Single Judge, there is no reasoning in support thereof, much less any ratio decidendi. Court may straightaway say that all other judgments seem to have followed this judgment implicitly.

       Order XXXVII, Rules 1 and 3(4)-Bombay High Court (Original Side) Rules, 1980, Rule 227-Limitation Act, 1963, Section S-Summons for judgment-Delayed-Whether entities defendant to seek unconditional summons for defend-Condonation of delay-Relevancy of-Once the delay in making application for summons is decided only then leave to be decided-Only when it is decided and delay is condoned-Depend upon conduct of parties, and ment of case,--The stage for considering the application for leave to defend commences only after the exercise of power of condonation of delay under Rule 227. Delay in taking out Summons for Judgment may result in the suit being placed on the board of the Chamber Judge for dismissal. At that stage, the defendant is not even in the picture. What transpires is purely between the Court and the plaintiff. The plaintiff has to satisfy the judicial conscience that there were circumstances under which dismissal of the suit would render injustice. Upon this being done, the suit would not be dismissed. In addition to the merits of the defence, the Court is required, to keep the conduct of the plaintiff also in mind. If the delay in taking out the Summons for Judgment is unconscionable, it could well affect the discretion of the Court in granting unconditional leave or in imposing conditions on the leave to defend the suit. To postulate that in every case, irrespective of the nature of the defence, the factor of delay in taking out the Summons for judgments alone should result in unconditional leave to defend the suit, would make the judicial discretion hamstrung and defeat the public policy underlying the procedure for summary suits.

       Order XXXVII, Rules 1, 3(4) and (5)-Bombay High Court (Original Side) Rules, 1980, Rules 221 to 227-Leave to defend-Courts power of discretion-Whether limited upto Order XXXVII-No application for summons within six months statutory period-Contention-Order XXXVII of CPC to be considered within its framework only-Not acceptable-Apart from Order XXXVII, Rule 3(5) there is High Court Rules giving discretionary power to court pass or not pass decree-Even as failure to apply for leave to defend,--Order XXXVII, Rule 3, sub-rule (5) itself postulates that the defendant has to apply for leave to defend by disclosing in his affidavit or otherwise "such facts as may be deemed sufficient to entitle him to defend". In addition to the provision of this rule, also have sub-rule (iv) of Rule 221, which applies on the Original Side of the High Court, which vests discretion in the Court to pass or not to pass a decree even if the defendant fails to apply for leave to defend or such application is refused by the Court. It is, therefore, not possible for Court to accept this extreme contention.