A decree in a summary suit can be set aside under special circumstances if the defendant demonstrates triable issues. Compliance with deposit conditions is essential for allowing a defense.

ORDER :

SENTHILKUMAR RAMAMOORTHY, J.

The suit was filed as a summary suit for recovery of a sum of Rs.1,58,89,109/- with interest at 24% per annum on the principal sum of Rs.75 lakhs from the date of plaint till the date of decree. The suit summons was served on the defendant on 18.05.2017. Upon receipt of suit summons, the defendant entered appearance through learned counsel on 07.06.2017. In or about August 2017, the plaintiff filed an application (A.No.5467 of 2017) for issuance of a decree as prayed for in the suit. Thereafter, the defendant filed three applications seeking: condonation of delay in filing the leave to defend application; leave to defend; and conversion of the summary suit into an ordinary suit. By order dated 16.08.2019, the suit was determined to be a commercial dispute as per Section 2(1)(c) of the COMMERCIAL COURTS ACT , 2015.

2. The defendant was directed to deposit a sum of Rs.50 lakhs to the credit of the suit by order dated 01.10.2019. The defendant failed to make such deposit. By order dated 23.10.2019, the matter was posted for hearing on 08.11.2019. On 08.11.2019, Application Nos.6928 & 6929 of 2017, which were filed to condone the delay in filing the leave to defend application and seeking leave to defend, were dismissed on the grounds of failure to deposit the sum of Rs.50 lakhs and that there is no substantial defence. Thereafter, by judgment dated 21.11.2019, the suit was decreed with interest at the rate of 7% per annum from the date of decree till the date of realisation.

3. The defendant filed appeals against the orders passed in Application Nos.6928 & 6929 of 2017 (O.S.A.Nos.33 & 34 of 2021). Such appeals were filed in April 2021. By judgment dated 16.11.2023 in the said appeals, the appeals were dismissed, without going into the merits thereof, by granting leave to the appellant to seek remedy before the single Judge. On such basis, the present applications have been filed to set aside the decree dated 21.11.2019 and to stay the execution of the decree dated 21.11.2019.

Counsel and their contentions

4. Oral arguments on behalf of the applicant were advanced by Mr.Chidambaram Athinamilagi and on behalf of the respondent/plaintiff by Mr.P.H.Aravind Pandian, learned senior counsel, and by Mr.S.Raghunathan, learned counsel.

5. The first contention of Mr.Chidambaram was that the summons, as received by the defendant, was not in conformity with Order XXXVII of the Code of Civil Procedure, 1908 (the CPC) read with Order VII Rule 1 of the ORIGINAL SIDE RULES , 1994 (the OS Rules). Such submission was made on the basis that the summons prescribed a period of six weeks to respond thereto instead of 10 days. In support of the contention that the specification of a wrong date in the summons vitiates proceedings, learned counsel relied upon the judgment of this Court in S.Srinivasan and another v. P.Bhakthavatsulu Naidu , AIR 1953 Madras 909 (S.Srinivasan). The next contention of Mr.Chidambaram was that the order rejecting the leave to defend application was not on merits and that such order was issued solely on the ground that the defendant failed to deposit a sum of Rs.50 lakhs in terms of order dated 01.10.2019. Since the decree dated 21.11.2019 was consequential thereto, learned counsel contended that such decree was also not on merits.

6. The third contention of Mr.Chidambaram was that the Court is empowered to set aside the decree under special circumstances in terms of Rule 9 of Order VII of the OS Rules. In this connection, reliance