Bombay High Court
Jayant Bhavanji Soni And Anr vs Joy Ashiyana And Anr on 25 March, 2021
Bench: Nitin Jamdar, C.V. Bhadang
27-comapst-4309-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO.4309 OF 2020
Jayant Bhavanji Soni & Anr. ...Appellants
V/s.
Jwaladutta Jankids HUF through
Karta Anil N. Kainya ...Respondent
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Mr.Anuj Narula with Ms.Meena Bhatta i/b Jhangiani Narula &
Associates for the Appellants.
Ms.Sunanda R. Kumbhat with Mr.Kunal Kumbhat and
Ms.Ankita Manjrekar for the Respondent.
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CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
DATE : 25 March 2021
P.C.
. Heard learned counsel for the parties.
2. The Respondent filed a Commercial Summary Suit
(L) No.1131 of 2019 against the Appellant with the following
prayers:-
"(a) This Hon'ble Court be pleased to order and
decree that Defendants jointly and severally do pay to
the Plaintiff an amount of Rs.2,62,46,979/- (Rupees
Two Crore Sixty Two Lac Forty Six Thousand Nine
N.S. Kamble page 1 of 6
27-comapst-4309-20
Hundred Seventy Nine only) along with further
interest @ 16.8% per annum on the principal
amount of Rs.2,46,50,000/- (Rupees Two Crore
Forty Five Lac Fifty Thousand only) from the date of
the filing of the present suit till the date of
realization.
(b) That this Hon'ble Court be pleased to attach
the properties in the name of the Defendant No.1
and restrain the Defendant No.1 from alienating,
encumbering and/or creating any thrid party right
title and/or interest in the movable and immovable
assets in the name of the Defendants being :
(i) 32 vacant 3BHK flats & 9 vacant 4BHK flats in
Joy Legend, A-Wing, Pali Danda Road, Khar West,
Mumbai-400052, and
(ii) Flat No.402, situated at Prime Beach
Apartments, 11, Juhu Tara Road, Juhu, Mumbao-
400049.
3. In this Suit, the Respondent-Plaintiff took out a
Summons for Judgment No.91 of 2019 on 7 November 2019.
An affidavit in support of the Summons for Judgment was filed.
The learned Single Judge, by judgment and order dated 20
March 2020, granted leave to the Appellants-Defendants to
defend the Suit subject to Appellants depositing a sum of
Rs.2,05,00,000/- in the Court and the Suit was to be transferred
to the list of Commercial Causes, permitting the Appellants to file
written statement. If the conditional order was not complied
with, the Respondents were given liberty to apply for an ex-party
decree. Being aggrieved the present Appeal is filed.
N.S. Kamble page 2 of 6
27-comapst-4309-20
4. The learned counsel for the Appellant submitted that
the Summons for judgment itself could not have been taken out
as the Suit as framed is not a filed under Order XXXVII of the
Code of Civil Procedure. According to the Appellant, Order
XXXVII Rule 2(b) mandates that no relief which does not fall
within the ambit of this Rule can be claimed while presenting a
plaint under this Order.
5. The learned counsel for the Respondent/Plaintiff
submitted that the provisions are not mandatory and it is only a
technical aspect. It is submitted that in any event, the prayers
which do not fall within the ambit of Rule 1(2) of Order XXXVII
can always be deleted. It is submitted that even otherwise, in the
summons for judgment, no such reliefs, have been sought for.
6. It is submitted by the learned Counsel for the
Respondent that the said ground based on Order XXXVII of
CPC was not raised during the course of hearing, before the
learned Single Judge. This is refuted by the Appellant. All that
we say is that the Appellants have taken a specific ground based
on Order XXXVII in its reply at the fore front and that appears to
be one of the main contention to oppose the Summons for
Judgment.
7. Order XXXVII of CPC. Order XXXVII Rule 2 reads
N.S. Kamble page 3 of 6
27-comapst-4309-20
thus:-
"(1) A suit, to which this Order applies, may if the
plaintiff desires to proceed hereunder, be instituted
by presenting a plaint which shall contain-
(a) a specific averment to the effect that the suit is
filed under this Order;
(b) that no relief, which does not fall within the
ambit of this rule; has been claimed in the plaint; and
(c) the following inscription, immediately below the
number of the suit in the title of the suit, namely :-
"(Under Order XXXVII of the Code of Civil
Procedure 1908)"
in Appendix B or in such other Form as may, from
time to time, be prescribed.
(3) The defendant shall not defend the suit referred
to in sub-rule (1) unless he enters an appearance and
in default of his entering an appearance the
allegations in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree
for any sum, not exceeding the sum mentioned in the
summons, together with interest at the rate specified,
if any, up to the date of the decree and such sum for
costs as may be determined by the High Court from
time to time by rules made in that behalf and such
decree may be executed forthwith."
(emphasis supplied)
The reliefs which can be claimed under Order XXXVII have
been enumerated under Rule 1(2) of Order XXXVII which reads
thus:-
(2) Subject to the provisions of sub-rule (1), the
Order applies to the
N.S. Kamble page 4 of 6
27-comapst-4309-20
following classes of suits, namely :-
(a) suits upon bills of exchange, hundies and
Promissory notes:
(b) suits in which the plaintiff seeks only to recover a
debt or liquidated demand in money payable by the
defendant, with or without interest, arising:-
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be
recovered is a fixed sum of money or in the nature of
a debt other than a penalty; or
(iii) on a guarantee, Where the claim against the
principal is in respect of a debt or liquidated demand
only."
8. After hearing the parties, and in as much as the issue
involved is a legal issue, we had expressed that the appeal can be
admitted for final hearing. It was then submitted by the learned
counsel for the Respondent in that event since the issue is not
considered by the learned Single Judge, the matter can be
remitted back for the learned Single Judge to consider the same.
The learned counsel for the Appellant is agreeable.
9. In the circumstances, the order dated 20 March 2020
is quashed and set aside. The Summons for Judgment (L) No.91
of 2019 is restored to the file of the learned Single Judge. All the
contentions of the parties, including the contention on behalf of
the Respondent that such prayers (which are beyond the scope of
Order XXXVII Rule 2b) can be withdrawn/deleted, and the
contention on behalf of the Appellants, that the said issue goes to
N.S. Kamble page 5 of 6
27-comapst-4309-20
the root of the matter, are left open.
10. At this stage, the learned Counsel for the
Respondent/Plaintiff states that a time bound schedule be fixed
for disposal of the Summons for Judgment. It is open to the
Respondent to make a request in that regard to the learned Single
Judge to take up the Summons for Judgment early and it is for
the learned Single Judge to consider the same, depending on the
pendency of the matters and the time schedule.
11. Appeal is disposed of as above. All pending Interim
Applications are accordingly disposed of.
(C. V. BHADANG, J.) (NITIN JAMDAR, J.)
N.S. Kamble page 6 of 6
