Sanjaykumar Suganchand Kasliwal vs Vikram Tea Processor Pvt Ltd ...
2017 Latest Caselaw 6926 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                    WRIT PETITION NO. 9163 OF 2017


Sanjaykumar Suganchand Kasliwal,
Age : 48 years, Occu. Business,
R/o Plot No.13, Chintamani Colony,              PETITIONER 
Aurangabad                                 (ORIG. DEFENDANT)

              VERSUS

Assam Tea Company,
A Company registered under the
Companies Act, having its 
office at Bhaishree Chambers,
Veer Sawarkar Chowk, Taluka                     RESPONDENT 
and District Jalna                         (ORIG. PLAINTIFF)

                                  AND

                    WRIT PETITION NO. 9165 OF 2017


Sanjaykumar Suganchand Kasliwal,
Age : 48 years, Occu. Business,
R/o Plot No.13, Chintamani Colony,              PETITIONER 
Aurangabad                                 (ORIG. DEFENDANT)

              VERSUS

Vikram Tea Processor Pvt.Ltd.,
A Company registered under the
Companies Act, having its 
registered office at Borkhedi,
Taluka and Dist. Jalna, having 
its office at "Bhaishree Chambers",
Veer Sawarkar Chowk, Taluka              RESPONDENT 
and District Jalna, through its     (ORIG. PLAINTIFF)
Authorized Signatory
Shri Kishor Sarjerao Kahire




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                                      AND

                      WRIT PETITION NO. 9166 OF 2017


Sanjaykumar Suganchand Kasliwal,
Age : 48 years, Occu. Business,
R/o Plot No.13, Chintamani Colony,                   PETITIONER 
Aurangabad                                      (ORIG. DEFENDANT)

              VERSUS

Beej Sheetal Research Pvt. Ltd.,
A Company registered under the
Companies Act, having its office
at Beej Sheetal Corner, Mantha Road,
Tq. and District Jalna, through
its Authorized Signatory                  RESPONDENT 
Shri Nilesh s/o Ramesh Agrawal       (ORIG. PLAINTIFF)

                          ----
Mr. A.R. Vaidya, Advocate holding for Mr. A.S. Bajaj,
Advocate for the Petitioner in all Writ Petitions 
Mr. Sanjeev B. Deshpande, Advocate for the respondent
in all Writ Petitions 
                          ----


                                  CORAM :   SANGITRAO S. PATIL, J.

JUDGMENT RESERVED ON : 29th AUGUST, 2017 JUDGMENT PRONOUNCED ON : 8th SEPTEMBER, 2017

COMMON JUDGMENT :

Rule, made returnable forthwith. With the

consent of the learned counsel for the parties, heard

finally.

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2. Since common questions of law and facts are

involved in these writ petitions, they are being decided

by this common judgment.

3. By these writ petitions, the original defendant

in Summary Suit Nos. 2 of 2016, 3 of 2016 and 4 of 2016,

has challenged the vires of the orders dated 12 th May,

2017, passed by the learned District Judge-1, Jalna,

whereby his applications, seeking directions against the

plaintiff to re-register the said suits as ordinary

suits under Section 26 of the Code of Civil Procedure

("Code", for short), came to be rejected.

4. The learned counsel for the petitioner submits

that the respondents have filed the above numbered

Summary Suits as per the provisions of Order XXXVII of

the Code. He submits that the contents of the plaints,

the nature of the dispute - subject matter of the suits

as well as the reliefs claimed therein do not fall

within the classes of the suits to which Order XXXVII of

the Code is applicable. He submits that the nature of

the transactions - subject matter of the said suits

appears to be that of money lending. The cheques are

stated to have been issued by the petitioner towards

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repayment of the loan amounts. There was no separate

written contract for payment of the amounts - subject

matter of the suits as well as the interest claimed

thereon. Therefore, the said suits were not liable to

be instituted as summary suits and should have been

instituted as ordinary suits, as prescribed under

Section 26 of the Code. He submits that the learned

Trial Judge wrongly rejected the applications filed by

the petitioner.

5. As against this, the learned counsel for the

respondents submits that the suits are based on the

cheques issued by the petitioner in the discharge of the

amounts of loan borrowed by him from the respondents.

The cheques basically are the bills of exchange. The

suits, therefore, fall within the category of class (a),

sub-rule (2), Rule-1 of Order XXXVII of the Code. The

interest has been claimed at the rate of Rs.18% per

annum on the amounts of cheques. The claim of the

respondents towards recovery of the amounts of cheques

as well as the interest accrued thereon being the fixed

sum of money, the suits have been rightly filed under

Order XXXVII of the Code. According to him, the

applications filed by the petitioner were not at all

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maintainable in view of the judgment in the case of

SICOM LTD. Vs. PRASHANT S. TANNA and others 2004(2)

Mh.L.J. 292, which has been cited by the learned counsel

for the petitioner also.

6. The Full Bench of this Court in the case of

SICOM LTD. (supra), considered the scope of Order XXXVII

of the Code and the kinds of suits which are

maintainable as Summary Suits under the said Order.

After considering various judgments and the provisions

of Order XXXVII of the Code, this Court summarised the

answers to the questions framed in paragraph No.2 of the

judgment, as under:-

28. In the circumstances, we summarise the answer to the reference as follows:

(1) The judgments in M/s Randerian & Singh vs. Indian Overseas Bank and Hydraulic and General Engineering vs. UCO Bank (1998)1 L.J.793 are overruled. The suit would be maintainable as a summary suit if it falls within one of the classes of suits enumerated in Order XXXVII, Rule 1 (2) even if the claim made therein is not properly quantified or is in excess of what the plaintiff is entitled to.

(2) In a summary suit filed under Order XXXVII of the Civil Procedure Code, the plaintiff is entitled at any time to abandon or give-up a part of the claim unilaterally. This, the plaintiff may do by making a statement to be recorded by the Court and without the necessity of the plaintiff making a formal application

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for the same by withdrawing the summons for judgment, amending the plaint and thereafter taking out a fresh summons for judgment or otherwise.

(3) At the hearing of the summons for judgment, it will be open to the Court to pass a decree for a part of the claim and grant unconditional leave to defend the suit in respect of rest of the claim.

(4) At the hearing of the summons for judgment, it is open to the Court to grant conditional leave to defend in respect of a part of the claim and unconditional leave to defend for the remaining part of the claim. In such an order it would follow that in the event of the defendant failing to comply with the condition, he would suffer the consequences mentioned in Order XXXVII qua only that part of the claim for which conditional leave to defend has been granted and not in respect of that part of the claim for which unconditional leave has been granted.

(5) There may be further options available to the Court while passing an order on the summons for judgment. Our judgment does not exhaustively set out the options. Obviously, judicial discretion has to be exercised in consonance with the settled legal principles governing grant of leave to defend in summary suits."

7. In the present case, the summary suits have

been filed by the respondents on the basis of the

cheques. There is no dispute that the cheques are

basically bills of exchange. The respondents have

claimed specific sums - subject matter of the cheques

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along with interest thereon at the rate of Rs.18% per

annum. The claims, as such, made by the respondents

thus fall under clauses (a) and (b), sub-rule (2), Rule

1 of Order XXXVII of the Code.

8. The plaints contain specific averments that the

suits have been filed under Order XXXVII of the Code.

In paragraph No.12 of the plaints, it is specifically

mentioned that the reliefs claimed by the respondents

are well within the confines of Order XXXVII of the

Code. In the cause title of the plaints, there is

specific mention that the suits are under Order XXXVII

of the Code. Thus, the plaints exhibit specific

compliance of classes (a) (b) and (c) of sub-rule (1),

Rule-2 of Order XXXVII of the Code.

9. The learned counsel for the petitioner cited

the judgment in the case of S.P. Brothers Vs. Biren

Ramesh Kadakia, LEX (BOM) 2008 3 33 = 2009(1) Bom. C.R.

453, wherein it has been held, in paragraph No.9, as

under:-

"It is a settled principle of law that before a plaintiff can bring a suit to be tried under the special summary procedure provided under Order 37 of the code, it is obligatory on the part of the plaintiff to satisfy the Court that the suit as framed is not only maintainable

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under the provisions of Order 37 of the Code but no relief whatsoever have been claimed in the suit that are falling outside the ambit and scope of the said provision. Wherever such an objection is taken, which in fact has been taken in the present case, the law requires the plaintiff in a suit to show that taking the averments made in the plaint to be correct, the suit satisfies the ingredients of the special provisions. If the ingredients of Order 37 on the plain reading of the plaint are not satisfied, then plaintiff cannot claim any benefit of the summary procedure."

10. As stated above, the respondents/plaintiffs

herein have complied with the requirements of Order

XXXVII of the Code in respect of the above numbered

suits filed by them. Moreover, as held in the Full

Bench Judgment in the case of SICOM LTD. (supra), the

suits, which fall within one of the classes of suits

described under sub-rule (1), Rule 1 of Order XXXVII of

the Code, would be maintainable as summary suits, even

if the claim made therein is not properly quantified or

is in excess of what the plaintiff is entitled to claim.

11. The learned counsel for the petitioner further

placed reliance on the judgment in the case of MAFATLAL

FINANCE LIMITED Vs. EXPRESS INDUSTRIAL SERVICES PRIVATE

LIMITED LEX (BOM) 1999 6 13 = 1999(3) Mh.L.J. 64. In

that case, the summary suit was filed under Order XXXVII

of the Code by the tenant against the landlord for

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recovery of Rs. 50,00,000/- given to the landlord as

security and Rs. 10,55,000/- by way of interest. The

claim of interest was not based on any agreement or

enactment. It was, therefore, held that the claim for

interest on the amount of security being not based on

any agreement or enactment, that part of the claim would

not fall within the summary procedure and no summary

suit could have been filed insofar as interest portion

was concerned.

12. It may be noted that after the judgment of the

Full Bench in the case of SICOM LTD. (supra), the scope

of the summary suit under Order XXXVII of the Code has

been clarified and it has been held that even if the

claim made in a summary suit is not properly quantified

or is in excess to what the plaintiff is entitled, the

summary suit would be maintainable.

13. In the above circumstances, I do not find any

substance in the contention of the petitioner that the

suits were not maintainable under Order XXXVII of the

Code.

14. The learned Trial Judge has rightly considered

the facts of the suits as well as the provisions of

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Order XXXVII of the Code and rightly held that the suits

are maintainable as summary suits under Order XXXVII of

the Code. The impugned orders are quite legal, proper

and correct. They do not call for any interference.

15. Before parting with this judgment, a note is

required to be taken of the manner in which the learned

District Judge-1 has referred to the citation in

paragraph No.4 of the impugned order. The learned Judge

has reproduced head-note/placitum instead of the

specific ratio laid down by the Full bench of this

Court. The head-notes are the opinions of the editor of

the Law Journals concerned. The practice of reproducing

the head-notes in the judgment has been deprecated by

this Court in the case of Roy Joseph Creado and others

Vs. Sk. Tamisuddin s/o Late Sk. Nazir Ahmed and others

2008(3) Mh.L.J. 705. Despite this judgment, some of the

Judicial Officers reproduce head-notes in the judgments.

Such practice has to be stopped.

16. The present writ petitions are liable to be

dismissed for the reasons mentioned above. In the

result, I pass the following order:-

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                                     O R D E R 


(i)              The Writ Petitions are dismissed. 


(ii)             Rule is discharged accordingly.


(iii)            No costs. 

  

                                              [SANGITRAO S. PATIL]
                                                     JUDGE


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