BADAR DURREZ AHMED, J.

( 1 ) THIS application has been filed on behalf of the defendant for rejection of the plaint under the provisions of Order VII Rule 11 read with section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") and, in the alternative, under Order XXXVII Rule 3 (5) of the CPC for grant of unconditional leave to defend. Although the application primarily purports to be under Order VII Rule 11 for rejection of the plaint, the same was not argued before this Court. In any event, nothing has been pointed out so as to warrant the rejection of the plaint under Order VII Rule 11 CPC. Only two questions arise for consideration:-

(1) Whether this suit, which is essentially for recovery of money paid under mistake, can fall under Order XXXVII CPC and be tried as a summary suit" (2) If yes, whether the applicant/ defendant is entitled to unconditional leave to defend"

( 2 ) BEFORE I embark upon a discussion relating to the above two questions, it would be necessary to point out the nature of the suit, as indicated in the plaint. The plaintiff is a bank incorporated under English Law in the United kingdom. There were some dealings between the defendant with regard to supply of garments and M/s Inwear Fashions, New York, USA. On 13. 03. 1997, the plaintiff received a communication from one Fleet Bank N. A. , New York, USA authorising one wire transfer for Pound Sterling 80,000 on behalf of its customer M/s Inwear Fashions. The remittance was to be made to the defendant through their bankers, UTI Bank Limited, 18 Barakhamba Road, Kanchanjunga building, New Delh. Since the plaintiff did not maintain a Sterling Account for the UTI Bank, New Delhi, it opened a Query file in its information system and asked the Fleet Bank N. A. New York to inform as to how the payment should be made. On 18. 03. 1997, the said Fleet Bank N. A. New York reverted to the plaintiff and requested the plaintiff to pay the amount through Chase Manhattan bank, London, U. K. Accordingly, the plaintiff made the payment on 19. 03. 1997 for Pound Sterling 79,964 being the principal sum excluding the bank charges. Due to an inadvertent mistake of the employees of the plaintiff, although the payment had been made, the said Query file was not deleted from the records.

( 3 ) ON 25. 03. 1997, Fleet Bank N. A. New York, contacted the plaintiff and stated about:blank 21-04-2009 that the beneficiary, that is, the defendant was claiming non-receipt of the payment against the above transfer made by the plaintiff. On receiving the above information, the plaintiff noticed that the Query file opened on 13. 03. 1997 did not reflect the fact that payment had already been made through chase Manhattan Bank, London, U. K. on 19. 03. 1997. Consequently, the plaintiff immediately remitted the amount once again as a third party CHAPS payment to chase Manhattan Bank, London, for Pound Sterling 79,988 being the principal sum less bank charges. Subsequently, in the course of verification of transactions of the plaintiff, the duplication of the payment to the defendant came to light and the plaintiff requested Chase Manhattan Bank to refund the said Pound sterling 79,988 paid erroneously for onward payment to the defendant. It is averred that Chase Manhattan Bank in turn had taken up the matter with UTI Bank limited, which informed that the amount had been credited to the account of the defendant and that the funds had already been withdrawn by the defendant from the said account. It is further averred that the New Delhi office of UTI Bank had been following up the matter with the defendant for refund of the double payment and various efforts had been made in this regard but did not yield any result. It is in these circumstances that the plaintiff filed the present suit for a sum of Pound Sterling 1,06,220, out of which Pound Sterling 79,988 was the principal sum payable by the defendant and Pound Sterling 26,232 was the interest thereon calculated at t

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