The main legal point established in the judgment is the exercise of judicial discretion in granting unconditional leave to defend the suit based on the lack of promptitude of the plaintiff and the nature of the defendant's defense.

1. The plaintiff has taken out this Chamber Summons for condonation of delay of 4495 days in filing Summons for Judgment in the above Summary Suit and to allow plaintiff to file a Summons for Judgment and place it for hearing. The defendants have opposed Chamber Summons and have contended that the suit be dismissed. The plaintiff has sued for recovery of certain monies under a foreign judgment passed by the Court in Dubai. The plaintiff has taken out various interim applications in the suit but not a Summons for Judgment. The plaintiff claims that in 2005 the plaintiff has changed its advocate and due to inadvertence not filed the Summons for Judgment.

2. The delay is of about 13 years in taking out Summons for Judgment. It is indeed a gross delay. It would have to be seen whether it can be condoned or not.

3. It may be mentioned that there is no time limit by way of period of limitation set out either in Order 37 of the CPC or in the High Court Original Side Rules (Rules) to take out Summons for Judgment within a specified time. Plaintiff who is otherwise entitled, has to take out Summons for Judgment within a reasonable time of the filing of the suit. Even if the Summons for Judgment is delayed by few years it is numbered and comes up for hearing. In this case the plaintiff's Summons for Judgment has not been accepted by the Court's registry itself, presumably in view of the gross delay and hence this application is made for leave to file the Summons for Judgment which otherwise plaintiff does not have to take. If the Summons for Judgment is delayed it has to be taken as one of the ground for granting unconditional leave. There have been judgments of the Single Judge of this Court holding that the Summons for Judgment may result in unconditional leave, if it is taken out after a lot of delay. It has been held by the Division Bench of this Court in the case of BankayBihari B. Agarwal & Ors. Vs. Bhagwanji Meghji & Ors., 2001(2) Bom C R 86 that merely because the Summons for Judgment is delayed is not the ground to grant unconditional leave. Similarly even if the Summons for Judgment is delayed it is not a ground to ignore the delay and the balance has to be struck between the lack of promptitude of the plaintiff and the nature of the defence of the defendant to grant unconditional leave or to decline leave to defend the suit. (See paragraph 37). It is also held upon considering the Supreme Court Judgment in the case of KalipadaDas & Ors. V. Bimal Krisna Sen Gupta, AIR 1983 SC 876 that failure of the plaintiff in taking out the Summons for Judgment within six months need not necessarily lead to dismissal of the suit. Similarly it is observed in paragraph 45 of the judgment that the contention that the delay in taking out the Summons for Judgment is wholly irrelevant is not correct. But the Court would exercise judicial discretion to dismiss the suit or to codone the delay and grant relief. The Court would have discretion to relegate the plaintiff to the procedure of an ordinary suit (See paragraph 45).

4. The Court considered Rule 227 in this behalf. The defendant also has relied upon Rule 227 and the judgment of the Single Judge of this Court in a case in which since the Summons for Judgment was not taken out for 8 years the suit was dismissed. The learned Judge in that case also referred to Rule 227.

5. It may be mentioned that Rules 226 and 227 must be read together. They run thus:

226. Defendant’s default in filing appearance or Vakalatnama. If the defendant does not enter an appearance in person or a vakalatnama within ten days from the service upon him of the Writ of Summons and the plaint, the plaintiff shall be at liberty to have the suit set down forth with for hearing before the Judge in Chambers.

227. When no decree applied for within six months. – If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down for dismissal on the board of the J