A Plaintiff in a summary suit is entitled to unilaterally abandon a part of the claim under Order XXIII Rule 1, and a suit would be maintainable as a summary suit even if the claim made therein is not properly quantified or is in excess of what the Plaintiff is entitled to.

S.J. Vazifdar, J.

1. The above Summons for Judgment appeared before the learned single Judge who, by a common order dated 22nd July, 2003, opining that they may be more advantageously heard by a larger bench, placed the matters under Rule 28 of the Bombay High Court (Original Side) Rules, before the Hon'ble Chief Justice for making an appropriate orders for constituting a larger bench. The Hon'ble Chief Justice by an order dated 14th November, 2003 constituted a larger bench to which one of us (S.J. Vazifdar, J.) was a party. As the earlier full bench was unable to her the matters, the present Bench was constituted to hear the reference.

2. The earlier full bench on 25th November, 2003, framed, for convenience, the following four questions of law:-

i) Whether the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 can be invoked while exercising powers under Order XXXVII of the Code of Civil Procedure and deciding a summons for judgment / application for leave to defend a summary suit instituted under Order XXXVII Rule 1 (2) thereof?

ii) Whether third option of abandoning a part of the claim in a summary suit is available to a plaintiff at the hearing of the summons for judgment or the options set out in two Division Bench judgments of this Court in M/s. Randerian & Singh v. Indian Overseas Bank and Hydraulic and General Engineering v. UCO Bank are exhaustive?

iii) Whether the Division Bench decision in Ajcon Capital Markets Limited v. Maya Rasayan Limited granting a third option as aforesaid is in accord with the summary procedure prescribed by Order XXXVII of Code of Civil Procedure?

iv) When at the hearing of a Summons for judgment, the Court finds that a part of the claim in the Summary suit, falls outside the scope of Order XXXVII of the Code of Civil Procedure, 1908, what are the options available to the plaintiff and what powers can the Court exercise?

3. The above suits were filed under Order XXXVII of the Code of Civil Procedure, 1908. It appears from the said order of the learned single Judge that one of the contentions of the Defendants in most of the matters was that there was no contract to pay interest and that the rate at which interest was claimed was excessive and not in accordance with the contract. The learned counsel appearing on behalf of the Plaintiff therefore sought, orally to give up a part of the claim which was not within the contract. This application was sought to be supported on behalf of the Plaintiff by relying upon a judgment of a Division Bench of this Court in Ajcon Capital Markets Limited v. Maya Rasayan Limited (2003) 6 B.C.R., page 810. The application was objected to by the learned counsel appearing on behalf of the Defendants. The objection was founded on two Division Bench judgments of this Court in M/s. Randerian & Singh v. Indian Overseas Bank (Appeal No. 1060 of 1986 in Summons for Judgment No.307 of 1986 in Summary Suit No.3212 of 1985) decided on 24th February, 1987 and Hydraulic and General Engineering v. UCO Bank (1998) 1 L.J. 793.

4. Order XXXVII of the C.P.C. reads as under:

"1. Courts and classes of suits to which the Order is to apply -(1) This Order shall apply to the following Courts, namely:-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) Other Courts:

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent, notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:-

(a) suits upon bills of exchange, hundies and promissory notes:

(b) suits in which the plaintiff se