In summary suits, the trial judge has discretion to grant conditional leave to defend based on triable issues, essential for expediting commercial disputes, unless genuine financial inability is substantiated.

1. This is an appeal filed by the original defendants against the decree passed against them by the Judge of the City Civil Court, Bombay, in Summary Suit No. 8471 of 1968.

2. It is necessary to notice the relevant facts and circumstances in order to decide the contentions raised in this appeal. The respondent. Purshottam S. Somaiya (who will hereinafter be referred to as the plaintiff) filed Summary Suit No. 8471 of 1968 against the appellants the Bombay Enamel Works, a firm carrying on business at Ravi Industries Compound, Agra Road, Thana, (who will hereinafter be referred to as "the Defendants"). The said suit was a summary suit under O. 37 of the Code of Civil Procedure , 1908, as amended by the Bombay High Court and was based on 5 Hundies executed by the defendants under the signature of one of their partners Champsinh Narsinh Vaidya. The total claim was for Rupees 11,500/- with interest thereon as prayed. The summary suit was filed on 7th December 1968 and the defendants were duly served. On 14th January 1969 the summons for judgment was taken out by the plaintiff and on 5th February 1969 an affidavit in reply to the said summons for judgment was sworn and filed by the said Champsinh Narsinh Vaidya as the partner of the defendants. The summons for judgment came up for hearing on the 6th of February 1969 when His Honour Judge, Rege. (as he then was), after taking the affidavits in reply and rejoinder on file passed the following order :
"On the defendants depositing in Court Rupees 7,500 within ten (10) weeks leave to defend granted. On such deposit being made the suit be transferred to the List of Long Causes. Written Statement within 4 weeks thereafter. Usual order for Discovery and Inspection. Hundies dated 22nd November 1967 to be retained on the file."

3. It requires to be noticed that the substantial time of 10 weeks given to the defendants for making the deposit, as directed, was to expire on the 17th April 1969. The defendants did not make the deposit but took out a Chamber Summons which bears no date. It is however stated at the foot thereof that the affidavit of Shri Jayant C. Vaidya., solemnly affirmed on 10th day of April 1969 would be used in support of the Chamber Summons. This Chamber Summons appears to have been registered on the 12th of April and was made returnable on the 17th of April 1969. It is not disputed that the Chamber Summons was not immediately served upon the Advocate for the Plaintiff but the Defendant's Advocate one V. R. Tripathi appears attempted to serve the Chamber Summons on the Plaintiff's Advocate in Court on the 15th of April. The said Advocate pointed out that the service would be short and he could not accept the same. The defendant's Advocate Mr. V. R. Tripathi then went to the office of the plaintiff's Advocate and handed over a copy of the Chamber Summons and the affidavit in support to the receiving clerk of the plaintiffs Advocate. In this manner the Chamber Summons was sought to be served. When the matter came up on 17th of April it was naturally ordered to stand over for one week because there had been no proper service. On 24th April, 1969 the Chamber Summons came to be heard when the Advocates for both the parties were present and His Honour Judge S. K. Desai (as he then was) dismissed the same with no order as to costs.

4. As is the practice the same suit came up for disposal later in the day when Mr. Kikla for the plaintiff was present but the defendant's Advocate Tripathi, who had been earlier present at the hearing of the Chamber Summons, remained absent probably