25.2739.21 wp.doc

ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION NO. 2739 OF 2021

DONA FOODS BEVERAGES PVT. LTD.

….PETITIONERS

AND ORS

V/s.

KALPATARU RETAIL VENTURES PVT. LTD.

…..RESPONDENTS

AND ORS

Mr. Jaydeep Deo i/b Anvil S. Kalekar Advocate for the Petitioners

Mr. Sandeep T. Patil i/b Mr. Suneet Kumar Tyagi for Respondent no.

1.

CORAM :

NITIN W. SAMBRE, J.

DATE:

MARCH 14, 2022.

P.C.:

1)

In summary suit initiated under Order XXXVII of Code of Civil

Procedure, 1908 (Hereinafter referred to as ‘the Code’ for the sake of

brevity) for recovery of arrears of licence fees, prayer of the

Petitioners-Defendants for grant of leave to defend came to be rejected

vide impugned order passed below exhibit 14. As such this petition.

2)

Facts necessary for deciding the petition are as under.

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IRESH SIDDHARAM

MASHAL

Digitally signed by IRESH

SIDDHARAM MASHAL

Date: 2022.04.25 12:31:39 +0530

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3)

Parties hereto were in agreement that there exist a leave and

licence agreement based on which, Suit in question being summary

suit number 49 of 2018 for recovery of licence fees came to be

initiated.

4)

Summons for judgment was served on Petitioners-Defendants

on 27/06/2018 in response to which they have filed affidavit-in-reply

to the summons for judgment on 5/07/2018.

5)

After the aforesaid proceedings Petitioners-Defendants took out

Application Exh. 14 praying therein, based on pleadings in affidavit

opposing summons for judgment, their prayer be also considered for

grant of unconditional leave to defend as provided under Order

XXXVII Rule 3 (5) of the Code. Said application Exhibit 14 came to be

rejected vide impugned order dated 06/03/2021 passed by Jt. Civil

Judge Senior Division, Thane, hence this petition.

6)

While assailing the said order, counsel for the Petitioners would

invite attention of this Court to the provisions of Order XXXVII of the

Code. According to him, affidavit objecting summons for judgment

was admittedly tendered on 5/07/2018 that is within the time of ten

days as stipulated under Order XXXVII Rule 3(5) of the Code. He

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would invite my attention to the pleadings in the said affidavit so as

to claim that in para 9, 43 and 44, it is specifically mentioned that

unconditional leave to defend be granted. According to him, such

prayer was made on affidavit. As such there is sufficient compliance

of the said provisions. Drawing support from the judgment of this

court in the matter of M/s. Sheth Creators Pvt. Ltd. V/s. Mpower

Business Facilitators Ltd.¹ he would urge that even if Order XXXVII is

complete Code, procedure prescribed therein cannot be read to the

prejudice of the party like the Petitioners. He would claim that even

if Application Exhibit 14 was not supported by an affidavit, the very

prayer for grant of unconditional leave to defend is on affidavit which

the Court below failed to appreciate. He would further claim that in

the aforesaid background, Court below committed an error in passing

the order impugned thereby rejecting Application Exhibit 14.

7)

While countering the aforesaid submissions, counsel for the

Respondent-Plaintiff would urge that provisions of Order XXXVII of

the Code are required to be construed strictly even if they are

procedural in nature. According to him Order XXXVII Rule 3(5) of the

Code in express terms prescribe for independent Application for grant

1 2016 SCC OnLine Bom 13755

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of unconditional leave to defend to be moved on affidavit and within a

period of 10 days from the receipt of suit summons. He would further

claim that Application Exhibit 14 was admittedly moved after expiry

of aforesaid statutory period of 10 days, which was not supported by

an affidavit. He would as such urge that aforesaid defects are not

curable. That being so, it is not open for the Petitioners to take the

shelter of the aff