Summons for Judgment No. 548 of 1998,Summary Suit No. 683 of 1994

27th September, 2000

Petitioner Counsel: Mr. M.V.PALAN, Mr. B.S.CHANDNANI
Respondent Counsel: Mr. H.J.THACKER, Mr. R.C.SHAH

Cases Cited:
Niwal Kishore vs. Khyali Ram, AIR 1929 Lahore 865 [Para 14]
Kaura vs. Ram Chand, AIR 1925 Lahore 385 [Para 14]
Tayabji & Co., (1905) VII Bom.L.R. 547 [Para 14]
Shaik Domun v. Shaik Emaun Ally, (1881) 7 Cal.401 [Para 14]
Ramkarandas Radhavallabh vs. Bhawandas Dwarkadas, AIR 1965 SC 1144 [Para 14]
Supreme Court Bar Association vs. Union of India, (1998) 4 SCC 409 [Para 14]
Bank of Maharashtra vs. S.S.Joshi, AIR 1982 Bom. 67 [Para 14,21]
M/s.Randerian & Singh Pvt.Ltd. vs. Indian Overseas Bank, Appeal no.1060 of 1986 [Para 22]
Hydraulic and General Engineering Ltd. vs. UCO Bank, 1998 I L.J. 793 [Para 23]
United Western Bank Ltd. vs. Marmago Steel Ltd., 1999(1) ALL MR 385=1999(1) LJ 341 [Para 24]
State Bank of India vs. Aaren Exports, 1997 V LJ 240 [Para 25]
Al-Mayat Export Pvt.Ltd. vs. Arcadia Shipping Ltd., Summons for Judgment No.385 of 1997 Summary suit NO. 1584 [Para 26]
BOI Finance Ltd. vs. Padma Alloy Casting Pvt. Ltd., 1999(3) ALL MR 376=AIR 1999 Bombay 340 [Para 27]
M/s. Machalec Engineering and manufacturers vs. M/s. Basic Equipment Corporation, AIR 1997 SC 577 [Para 27,34]
Sunil Enterprises vs. S.B.I. Commercial and International Bank Ltd., 1998(5) SCC 354 [Para 27,49]
Steel Engineering Co. vs. Jawaharlal Dalamachand, Appeal No. 99 of 1972 Summary Suit No. 43 of 1972 [Para 30]
Santosh Kumar vs. Bhai Mool Singh AIR, 1958 SC 321 [Para 31,33]
Sangram Singh vs. Election Tribunal, Kotah Bhurey Lal Baya, AIR 1955 SC 425 [Para 33]
Smt. Kiraneyoee Dessi vs. Dr.J.Chatterjee [Para 34]
Raj Duggal vs. Ramesh Kumar Bansal, 1991 Sup(1) SCC 191 [Para 38]
Kalipada Das vs.Bimal Krisna Sen Gupta, AIR 1983 SC 876 [Para 39]
Arjun Lal Varma & Anr vs. Smt. Rawal Kaur, AIR 1982 Delhi 148 [Para 39]
Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 [Para 40]
Pratim Singh vs. High Court of Madhya Pradesh, AIR 1992 SC 904 [Para 41]
Manohar Lal Chopra vs. Rai Bahadur Hiralal, AIR 1962 SC 527 [Para 41]
Hawabai vs. Abdul Sattar Oomer, (1995) 2 BCR 551 [Para 42]
Oil and Natural Gas Corporation Ltd. Vs. State Bank of India JT, 2000(8) SC 141 [Para 46]
M/s. Larson & Toubro Ltd. vs. Arun Kumar Mansingka JT, 2000(4) SC 556 [Para 47]
Mademsetty Satyanarayana vs. G.Yelloji Rao., AIR 1965 SC 1405 [Para 48]
G.K.Prabhakaran & Co. vs. David Traders, AIR 1973 Kerala 1 [Para 51]
Ambalal Purushottamdas & Co. vs. Jawaharlal Purushottam Dave, AIR 1953 Cal.758 [Para 52]
Laxmidas Devidas Kapadia vs. Mathuradas Dwarkadas, 57 Bom.L.R. 1118 [Para 53]

JUDGMENT

B.N.SRIKRISHNA , J. :- This reference has been made to the Division Bench by the Learned Chief Justice for resolving a perceived conflict in judgments of learned Single Judges.

2. By an Order dated 23rd December, 1999, T.K.Chandrashekhara Das, J., suggested to the learned Chief Justice that the following two questions be referred to a Division Bench for resolving the conflict in judgments of Single Judges :-

"1. Whether the discretion vested in the court can be exercised as a matter of course if the Plaintiff commits any failure to comply with the time frame prescribed under Rule 227 of the High Court Rules coupled with provisions of Order 37 of Code of Civil Procedure ?

2. Whether time frame stipulated under Order 37 of Code of Civil Procedure has to be scrupulously followed both by Plaintiff and defendant and whether the Court as a matter of course use its discretion to condone such failure and grant relief to such parties in view of the social objectives that has to be achieved in enacting Order 37 of Code of Civil Procedure ?"

3. After hearing the Counsel, we are satisfied that, in order to resolve the controversy that has arisen, it is necessary to re-formulate the terms of the Reference itself. Hence, the Reference is re-formulated as under:-

"(1) What is the legal consequence of a Summons for Judgment not being taken out by a Plaintiff within the period of 6 months of the plaint being filed ?

(2) Upon such failure of the Plaintiff, is the Defendant, as a matter of course, entitled to unconditional leave to defend the suit, irrespective of the merits of the defence ?"

4. Before we answer the Reference, it is necessary to take a survey of the applicable legal provisions, including the Rules of this Court.

5. Order 37 of the Code of Civil Procedure, 1908, as amended in its application to the State of Maharashtra, provides for a summary procedure to be adopted in specified cases. The summary procedure is applicable to the High Court, City Civil Court and the Courts of Small Cause and such other Courts, as may be specifically empowered by the High Court by a Notification in the Official Gazette. By a Notification dated 10th March, 1998, the High Court has notified that all the Courts in the State of Maharashtra exercising Civil Jurisdiction, to the extent of pecuniary jurisdiction, are empowered to try the categories of suits specified in Rule 2 of Order 37, by the summary procedure prescribed in the said order. Rule 2(1) enumerates the types of cases which are to be tried by the summary procedure, and provides as under :-

"Institution of summary suits upon bill of exchange, etc.-

2.(1) All suits, upon bills of exchange, hundies or promissory notes and all 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 on a written contract or 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 on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint with a specific averment therein that the suit is filed under this Order and, that no relief not falling within the ambit of this rule has been claimed, and with the inscription within brackets "(Under Order XXXVII of the Code of Civil Procedure, 1908)" just below the number of the suit in the title of the suit, but the summons shall be in form no.4, in Appendix B or in such other form as may be from time to time prescribed."

Upon a suit being filed under Order 37, a summons in the prescribed form,i.e., Form no.4 in Appendix B, is to be issued to the Defendant. On being served with the summons, the Defendant is required to enter appearance within the prescribed period of 10 days, and obtain leave from the court to defend the suit. If the defendant fails to enter appearance within the prescribed period or fails to obtain leave to defend, the allegations in the plaint shall be deemed to be admitted, and the Plaintiff is entitled to a decree in the sum mentioned in the plaint together with interest at the rates specified up to the date of the decree and such costs as may be awarded by the Court. Rule 3 requiresd that the Plaintiff shall, together with the Writ of Summons, serve on the Defendant a copy of the plaint and exhibit thereto, and provides that a Defendant may enter an appearance within 10 days of such service either in person or by pleader. Sub-rules(1) to (5) of Rule 3 of Order 37 are important and they read as under:-

"Service of the Writ of Summons on defendant and appearance by defendant.-

3.(1) The plaintiff shall together with the writ of summons under rule 2 serve on the defendant a copy of the plaint and exhibits thereto, and the defendant may, at any time within 10 days of such service, enter an appearance. The defendant may enter an appearance either in person or by pleader. In either case an address for service shall be given in the memorandum of appearance, and, unless otherwise ordered, all summonses, notices or other judicial processes required to be served on the defendant shall be deemed to have been duly served on him, if left at this address for service. On the day of entering the appearance, notice of the appearance shall be given to the plaintiff's pleader (or, if the plaintiff sues in person, to the plaintiff himself) either by notice delivered at or sent by pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.

"Summons for judgment"

(2) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant, a summons for judgment in Form No.4A in Appendix B or such other form as may be prescribed from time to time returnable not less than ten clear days from the date of service supported by an affidavit verifying the cause of action and the amount claimed, and stating that in his belief there is no defence to the suit.

"Defendant to apply to leave to defend.

(3) the defendant may, at any time within ten days from the service of such summons for judgment by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit. Leave to defend may be granted to him unconditionally or upon such terms as to the Court or judge appear just.

Hearing and judgment.

(4) At the hearing of such summons for judgment -

(a) if the defendant has not applied for leave to defend or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith, or

(b) if the defendant be permitted to defend as to the whole or any part of the claim, the Court or the Judge shall direct that on failure to complete the security (if any), or to carry out such other directions as the Court or the Judge may have given within the time limited in the order, the plaintiff shall be entitled to judgment forthwith.

Delay in entering appearance or in applying for leave to defend may be condoned.

(5) The Court may for sufficient cause excuse the delay in entering the appearance under sub-rule (1) or in applying for leave to defend the suit under sub-rule (3) of this rule.

Rule 4 provides that after a decree is made, the Court may, "Under special circumstances" set aside a decree, stay or set aside the execution and give leave to the Defendant to appear in response to the summons and to defend the suit, if so satisfied. Rule 5 provides that save as provided by Order 37, the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. It is settled law that the "special circumstances" contemplated under Rule 4 of Order 37 are distinct and different from the circumstances to be considered for setting aside an ex-parte decree under Order 9, Rule 13 of the Code of Civil Procedure.

6. Apart from the provisions under Order 37 of the Code of Civil Procedure, this Court, in exercise of its powers under Section 129 of the Code of Civil Procedure, 1908, has also framed Rules on its Original Side, which are applicable to the trial of summary suits. These Rules are contained in Chapter XIV of the Bombay High Court (Original Side) Rules (hereinafter referred to as "the 1980 Rules"). Rules 221 to 227 of the 1980 Rules deal with the procedure to be adopted on the Original Side of this Court while trying summary suits, Rules 221 and 227 are important, and they read as under:-

"R.221. Summons for Judgment:-

(i) In a suit filed under Order XXXVII of the Code of Civil Procedure, if the defendant enters an appearance in person or vakalatnama the plaintiff shall apply by Summons for Judgment to the Judge in Chambers for a decree for the amount claimed, together with interest, if any, and costs. The summons shall be supported by affidavit, confirming the facts alleged in the plaint and stating that in the deponent's belief there is no defence to the suit. The summons shall be in Form No.11 and shall be made returnable not less than ten clear days from the date of the service.

(ii) The defendant may apply on such summons for leave to defend the suit by filing an affidavit or affidavits, showing that he has a good defence to the suit on the merits or disclosing such facts as may be deemed sufficient to entitle him to defend.

(iii) Leave to defend the suit may be granted to the defendant unconditionally or upon such terms as the Judge may seem just. If leave to defend is granted, the Judge may give such directions as he may deem fit.

(iv) If the defendant does not apply for leave to defend or if such application is made and is refused, the Judge may pass a decree forthwith for the plaintiff."

"R.222. Judgment for part of claim.- If it appears that the defence set up by the defendant applied only to a part of the plaintiff's claim, or that any part of the claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted,subject to such terms, if any, as to suspending execution, taxation of costs, or otherwise, as the Judge may think fit; and the defendant may be allowed to defend as to the remaining claim of the plaintiff."

"R.223. Where one defendant has good defence but another has not.- If it appears to the Judge that one defendant has a good defence to the suit and ought to be permitted to defend and the plaintiff shall be entitled to enter final judgment against the latter, and he may issue execution upon such judgment without prejudice to his right to proceed with his suit against the former."

"R.224. Default in completing security or carrying out directions.-

If the defendant does not complete his security (if any) or carry out such other directions as the Judge may have given within the time limited in the order, the plaintiff shall be at liberty to have the suit set down for hearing forthwith before the Judge in Chambers, as if no order granting leave had been made."

"R.225. Setting down of summary suits for hearing.-

Summary suits in which leave to defend is granted shall, as far as possible, be set down for hearing, before the Judge appointed from time to time by the Chief Justice for that purpose, on the days fixed for the hearing thereof."

"R.226. Defendant's default in filing appearance or vakalatnama.-

If the defendant does not enter an appearance in person or a vakalatnama within ten days from the service upon him of the Writ of Summons and the plaint, the plaintiff shall be at liberty to have the suit set down forthwith for hearing before the Judge in Chambers."

"R.227. When no decree applied for within six months.-

If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down for dismissal on the board of the Judge in Chambers. The Prothonotary and Senior Master shall notify on his notice board the date on which the suit is to be so set down and shall do so at least eight days before such date. If the plaintiff is appearing in person, the Prothonotary and Senior Master shall give notice of the date to the plaintiff by sending a letter to him by post under certificate of posting."

Apart from a procedure prescribed for trial of summary suits, the 1980 Rules also prescribe in detail the procedure applicable to general suits. Though we are not strictly concerned with the procedure, we might just mention in passing that Rule 69 provides for a Writ of Summons to the Defendant to appear and answer, which should be in Form 8, 9 or 10. Rule 73 deals with returnable date of summons in matrimonial suits and the hearing of such suits. Rule 74 deals with suits other than matrimonial and summary suits, and the time to be specified for the Writ of Summons for filing appearance or Vakalatnama and Written Statement. Rule 75 deals with returnable dates of summonses in suits other than matrimonial suits and summary suits. Rule 87, which is generally applicable to all suits, states that if the writ of summons has not been served within 6 months from the date of the filing of the plaint, the Prothonotary & Senior Master shall, unless good cause is shown, place the suits on board for dismissal. The Prothonotary & Senior Master shall notify such suits on his notice-board one week before they are placed on the board for dismissal.

7. Upon a consepectus of these Rules, read against the background of the provisions of order 37, respective Counsel for Plaintiffs and Defendants strongly canvassed diametrically opposite views. For the Defendants, it is contended that Rule 227 of the 1980 Rules required the Plaintiff to apply for decree within 6 months "after the filing of the plaint", and if there is failure to do so, the suit is required to be set down for dismissal before the learned Chamber Judge. It is contended on behalf of the Defendants that a summary suit is a special procedure made applicable in a limited class of suits and if a plaintiff is indolent and fails to comply with the time-schedule prescribed under Rule 227, there is no reason why he should be given the privilege of continuing with the suit as a summary suit, and that his suit should be relegated to the status of an ordinary suit by granting unconditional leave to defend the suit to the Defendant. In other words, according to the Defendants, any delay in taking out a Summons for Judgment beyond the period of 6 months from the date on which the Plaintiff brought the suit should automatically entitle the Defendant to unconditional leave to defend the suit. For the Plaintiffs, it is contended equally forcefully that leave to defend the suit can be granted only upon consideration of merits of the defence, and not the conduct of the Plaintiff. It is urged that the only legal consequence of the Plaintiff not complying with the time limit prescribed for taking out the application for a decree within six months of the plaint would be that the suit would be set down on the board of the Chamber Judge for dismissal. It is urged that merely because a suit is set down on the board for dismissal, it does not mean that the suit stands dismissed or has to be dismissed. It only gives the discretion to the Chamber Judge to dismiss or not to dismiss the suit. In this connection, reliance is placed on the provisions of Rule 265, which says:

"R.265. Power of Court or Judge to enlarge or abridge time.-

The Court or the Judge in Chambers shall have power to enlarge or abridge the time appointed by these rules or fixed by any order for doing any act or taking any proceedings, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

Thus, the Plaintiffs contend that even if the suit is liable to be placed on the board for dismissal, if the plaintiff is able to show good reasons for his failure to make the application for the decree (i.e. the summons for judgment) within a period of 6 months, then, the learned Chamber Judge may, in his discretion, decline to dismiss the suit. Once the suit is not dismissed, the Counsel contend that the issue of granting leave conditionally or unconditionally to defend the suit must thereafter be governed only by the merits of the suit as indicated in Order 37, Rule 3. A large number of authorities in support of these opposing propositions were cited at the Bar, and we shall shortly deal with them.

8. Before going into the authorities cited, and the manner in which the conflict has arisen, we think that it would be useful to deal with the general principles on which summary procedure has been devised. It is the general experience of Courts, particularly in this country, taking into account the low amount of costs awarded, that the Defendants tend to delay the trial of the suit in the hope of postponing the evil day of decree against them. Consequently, all kinds of defences, good, bad or indifferent, are trotted out to postpone the judgment day. The Legislature was very much conscious of the efforts on the part of dishonest defendants, without even a semblance of defence, to delay the trial of suit. Hence,departing from the general procedure applicable to all suits, the Legislature thought it fit that in purely commercial matters, or in matters where the claim is admitted or practically indefensible, a summary procedure ought to be made available, so that such suits could be disposed of expeditiously. This is the guiding principle behind Order 37 of the Code of Civil Procedure.

9. The Objects and Reasons clause appended to the Bill, which brought into existence Order 37 of the Code of Civil Procedure, 1908, states that Order 37 provides for a summary procedure in respect of certain suits. The essence of the summary suit is that the defendant is not, as in an ordinary suit, entitled as of right to defend the suit. He must apply for leave to defend within ten days from the date of the service of the summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the Court may deem sufficient for granting leave to the defendant to appear and defend the suit. If no leave to defend the suit is granted, the Plaintiff is entitled to a decree. The object underlying the summary procedure is to prevent unreasonable obstruction by a Defendant who has no defence. The Order is, however, confined to suits of negotiable instruments and is confined to superior Courts. We may at once point out that these were the Objects and Reasons given in the Bill published in the Gazette of India dated 8th April, 1974, Part II, 2nd Section, Extra-ordinary, page 334, when Order 37 was revamped in 1976. We may also point out that at that time Order 37, Rule 2, provided that a plaintiff shall be entitled to a decree if the Defendant fails to appear or defend the suit without obtaining leave from a Judge so to appear and defend the suit. Sub-rule (3) provided that on an application being made by the Defendant, the Court shall give leave to appear and defend the suit upon facts "Which disclose such facts as would make it incumbent on the holder to prove consideration on such other facts as the Court may deem sufficient to support the application." Rule 1 has now been amended in the form in which it is seen presently. Thus, it will be seen that the main reason for introducing the summary procedure in the Code of Civil Procedure was to put an end to avoidable delay in trial of suit by a Defendant raising defences which have no merits whatsoever. With this philosophy behind the statutory provision to serve as a guiding principle, we need to examine its practical application in the form of the statutory provisions as well as the procedural rules framed by the High Court. Once we realise that the intention behind the adoption of the summary procedure is to expedite suits, it becomes necessary to ensure that both Plaintiffs as well as Defendants are put to terms in case of indolence or lethargy on their part. Interestingly, Order 37 lays down stringent conditions subject to which alone, a Defendant is allowed to defend the summary suit, and it nowhere purports to regulate the conduct of the Plaintiff in pursuit of his suit. This, perhaps, was realised to be a lacuna in the legislative provision, and therefore, the High Court stepped in to fill up the lacuna by framing Rule 227, which deals only with the Plaintiff's conduct of the suit. The reason for this is not far to seek.

10. Every plaintiff has the choice of bringing any suit, and is governed by normal rules prescribed by the Code of Civil Procedure in the conduct of such suit. Order 37 is a special summary procedure which is applicable to a limited class of suits. If a plaintiff wants to adopt this, Rule 227 enjoins him to act with alacrity by taking out Summons for Judgment for decree within 6 months after filing of the plaint. If he fails to do so, then the Rule enjoins upon the Prothonotary & Senior Master to place the suit on board for dismissal before the Chamber Judge. In our view, merely because a suit is placed upon the board for dismissal for failure to take out a Summons for Judgment within 6 months, it need not be dismissed. Rule 265 of the 1980 Rules cloathes the Chamber Judge with the discretion to enlarge or abridge the time appointed by the Rules, or fixed by any order, for doing any act or taking any proceedings, upon such terms as the justice of the case may require. Thus, there is scope for exercise of judicial discretion depending on the facts and circumstances of the case. Consequently, upon failure to take out the Summons for Judgment within a period of 6 months, as provided by Rule 227, all that would happen is that the suit would appear on the board for dismissal, and the Plaintiff is required to satisfy the Chamber Judge as to reasons, if any, which prevented him from taking out the Summons for Judgment within a period of 6 months. If the Judge is not satisfied, then, the suit shall, of course, be dismissed. However, if the Chamber Judge accepts the reason given by the Plaintiff for the delay, then, under Rule 265, he has discretion to excuse the delay in the taking out of the Summons for Judgment "upon such terms as the justice of the case may require". No one has disputed this proposition that delay in taking out Summons for Judgment is always excusable for good reasons and on such terms as the Chamber Judge may decide.

11. That a rule of procedure is but handmaid to justice is a trite saying. Infraction of the rule of procedure, that too with regard to a time stipulation, may be looked at askance by the Court, but in the absence of any legislative mandate to dismiss the suit, it will not result in dismissal of the suit.

12. The question that arises is: Whether a plaintiff who deviates from the regular jurisdiction of the court and chooses to adopt the procedure for summary trial of a particular class of suits, should be given the advantage of continuing to do so in case his conduct in not taking out the Summons for Judgment within the prescribed period contributes to the delay in the trial of the suit? This is the rub of the matter. While it is contended for the Defendants that the inevitable consequence should be grant of unconditional leave to defend the suit, the plaintiffs rejoin that leave to defend the suit must rest on no consideration other than the merits of the defences to the suit. In our judgment, the truth, as usual, lies somewhere mid-way between the two extreme views, in any event.

13. First and for most, it appears to us that there is authority for the proposition that the summary procedure is departure from norm made available to a litigant who wants to pursue his case vigilantly. Again, a person who pursues the summary procedure must necessarily take the benefits as well as the disadvantages of doing so. He cannot get the benefit of an expedited decree without incurring the liability to do certain acts within specified time.

14. In Niwal Kishore & Ors. v. Khyali Ram & ors. (AIR 1929 Lahore 865), the Plaintiff had resorted to summary procedure under Order 21, Rule 58, of the Code of Civil Procedure, and contended that the limitation in Article 11 of the Limitation Act did not apply to such a petition. It was held that the Petitioner, being a mortgagee without possession, if he chose to prove an objection under Order 21, Rule 58, on the strength of the alleged mortgage, against attachment and sale of property in execution of money decree obtained by a third party against his mortgagor, and an adverse order is passed against him in the objection proceedings, such decision is conclusive against him, unless he brings a declaratory suit within one year as provided in Article 11 of the Limitation Act. Repelling the argument that the period for bringing the suit should be the same as any other suit, the High Court held that the general policy of these provisions of the Code is to secure a speedy settlement of the question of title raised at execution sales, and, therefore, if a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well as enjoy its benefits. This decision followed the earlier judgment of the Lahore High Court in Kaura & Anr. v. Ram Chand & Anr. [AIR 1925 Lahore 385], which had pointed out that Act II of 1913 provided for a summary procedure for the redemption of certain mortgage of land in Punjab. It was a miniature Code in itself and because the suit under Section 12 of the said Act was a suit to set aside the Order of the Collector on general conditions, the Court held that on the interpretation adopted by it to reduce the normal period of the limitation in such a suit, it would not amount to an unfortunate circumstance and an individual who seeks to take advantage of the summary procedure must suffer its disadvantages as well as enjoy benefits. In the Penn Juel case [36 F.2d 272] decided by District Court, S.D., New York, the view was expressed that, as a rule the Courts are not hospitable to summary proceedings although on appropriate occasions they have recourse to them and it is always a question of discretion in motions for summary orders whether the Court will entertain the motion or will relegate the moving party to a plenary suit. Our own High Court In the matter of Costs Due to Mesrs. Tyabji & Co. [(1905) VII Bom.L.R. 547] had an occasion to consider this. Here, the Plaintiff had preferred the summary procedure of taking out a summons for Judgment, instead of filing a regular suit for recovery of costs. The Court relied on the observations of the Calcutta High Court in Shaik Domun v. Shaik Emaun Ally [(1881) 7 Cal.401] that where there are many questions of a complicated character or disputed facts, or where there might be injustice done to any of the parties whose interests can be affected, then it would not be a proper case for the exercise of the summary jurisdiction of the Court. Said the Court:

"Because it must be remembered that where it is open for a party to come under the summary jurisdiction, or to proceed under a regular suit, it must be inherently in the power of the Judge to say: 'You have the remedy of a regular, proper suit in which the parties affected can be brought before the Court much more satisfactorily than under the summary jurisdiction of the Court, and this is a case which in my opinion deserves to be investigated more fully, and I therefore decline to exercise the summary jurisdiction. You must proceed in a regular suit."

This is the larger principle which the Court exercising its discretion of permitting the litigant to adopt a summary procedure, or relegate him to the regular procedure, should follow. In our opinion, this principle would equally apply when a litigant chooses to bring a summary suit and adopts the summary remedy given under Order 37 of the Code of Civil Procedure. Hence, it would be open to the Court to tell the Plaintiff that, in as much as he had not been vigilant in the taking out of the Summons for Judgment, the Court would decline to allow the Plaintiff to adopt the summary procedure and relegate him to the remedy of an ordinary suit. "Vigilantibus et non dormientibus jura Subveniunt" is the maxim which governs all legal proceedings. The inherent power of the court to do justice was also called in aid. We are of the view that the inherent power of the Court can be called in aid unless there is a specific legislative provision or rule of procedure governing the issue. Either way, in our view, the Court has sufficient judicial discretion in the matter. [See in this connection, Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas (AIR 1965 SC 1144)]. In our view, reliance on the Supreme Court judgment in Supreme Court Bar Association v. Union of India and anr. [(1998) 4 SCC 409] may not be appropriate for it deals with the contempt power of a Court of record, particularly the Supreme Court, under Articles 142 and 129 of the Constitution of India. The situation is not a parallel one and the Judgment has no application.

15. The next question - and the most vexatious one - which has been debated vigorously is as to the parameters and guidelines to be adopted by the Court while exercising this judicial discretion. This is where the real controversy arises. It is not possible for us to accept the extreme contention that merely because the Plaintiff failed to take out the Summons for Judgment within the period prescribed by Rule 227, the Defendant is, as a matter of course, entitled to unconditional leave to defend the suit.

16. There is good reason for which we are inclined to take this view. Order 37, Rul 2, Sub-rule (2) provides for the consequence of the failure of the Defendant to enter appearance and obtain leave to defend from the Court. In terms, this Sub-rule says: "..the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree", indicating thereby that where the Defendant does not apply for leave to defend, or if such an application is made and refused, a decree shall be granted to the plaintiff. Rule 221 of the 1980 Rules framed in its application to the proceeding before this court, however, is slightly differently worded. Sub-rule (iv) of Rule 221 in terms provides, "If the defendant does not apply for leave to defend or if such application is made and refused, the Judge may pass a decree forthwith for the plaintiff". At once, we notice the distinction in the phraseology of Order 37, Rule 2(2) as contrasted with the phraseology used in Rule 221(iv). At least as far as this Court is concerned, by virtue of Section 129 of the Code of Civil Procedure, as long as the Rule framed by the High Court is not inconsistent with the provisions of the Letters Patent or order or other law establishing it to regulate its procedure, nothing contained in the Code of Civil Procedure shall effect the validity of such Rules. The non-obstante clause used at the commencement of Section 129 puts the matter beyond cavil. In our judgment, therefore, at least as far as the cases before the Original Side of this Court are concerned, there is discretion vested in the Judge to pass or not to pass a decree even in a case where the Defendant failed to apply for leave to defend or the application for leave to defend has been refused. In our view, this discretion has been given for obvious reasons. A plaint, even if it is presented in the form of summary suit, may disclose no cause of action at all. Merely because the Defendant fails to appear or file his Vakalatnama or fails to obtain leave to defend the suit, the suit cannot be decreed if the Judge is satisfied that there is no cause of action at all disclosed in the plaint. It is this wide discretion of the Court which has been expressly recognised in Rule 221. Notwithstanding the somewhat peremptory phraseology used in Order 37, Rule 2(2), suggesting that no such discretion is vested in the Court, for reasons which we have already given earlier, we are of the view that there is always vested in the Court the judicial discretion to permit a plaintiff to take advantage of the summary procedure or to relegate him to the normal remedy of a regular suit. We are, therefore, of the view that the mere failure of the Plaintiff to take out a Summons for Judgment within 6 months after the filing of the plaint would not justify granting of unconditional leave to defend the suit.

17. The converse extreme proposition canvassed before us, viz. that the delay on the part of the plaintiff in taking out Summons for Judgment within the period of 6 months after the filing of the plaint is wholly irrelevant and cannot enter the picture to influence the discretion of the Court while deciding an application of the Defendant for leave to defend the suit, is also unsound, in our judgment.

18. It is strongly urged that the exercise of discretion by the Court to grant leave, conditionally or unconditionally, is an exercise that occurs only after the barrier created by Rule 227 is crossed. If the Plaintiff has not taken out a Summons for Judgment within the period of 6 months from filing of the plaint, then the suit is liable to be placed before the Chamber Judge for dismissal, but, if the Chamber Judge declines to dismiss the suit, and permits the Plaintiff to take out a Summons for Judgment subject to costs or other terms, at the stage of the hearing of the Summons for Judgment the consideration which would weigh with the Court for granting conditional or unconditional leave or refusing leave to defend the suit are wholly unconnected with the Plaintiff's conduct in not complying with the time limit prescribed by Rule 227.

19. Several judgments of our High Court and the Supreme Court have been cited on both sides touching upon this controversy and it is time to deal with them.

20. The first judgment is the judgment of Mody, J., in Central Bank of India v. Femme Pharma Ltd. & Ors. [AIR 1982 Bombay 67]. Factually, it is seen in this case that the contention urged by the Defendant was that the discretion exercisable by the Chamber Judge under Rule 227 of the 1980 Rules was narrower than the discretion exercisable under Rule 220(4) of the 1957 Rules. It was contended that for this reason the suit itself had to be dismissed since the Summons for Judgment was not taken out within the period of 6 months. The learned Single Judge repelled this contention and took the view that the contrast in the phraseology used in Rule 220(4) of the 1957 Rules with Rule 227 of the 1980 Rules suggested that the discretion under the old Rules was limited to sufficient cause being shown and, if sufficient cause was not shown, suit had to be dismissed in the event of the Summons for Judgment not having been taken out within 6 months of the filing of the plaint. The learned Judge held that the present Rule 227 merely provides that the suit would be placed on board for dismissal and does not indicate the consequence thereof. The learned Judge, in our view rightly, held that the discretion was wider, and that the Court was not bound to dismiss the suit. However, the learned Judge, without any supporting reason, took the view that the Summons for Judgment had been taken out after delay and unconditional leave was granted to the Defendant to defend the suit. While the judgment records factually what was done by the learned Single Judge, there is no reasoning in support thereof, much less any ratio decidendi. We may straightaway say that all other judgments seem to have followed this judgment implicitly.

21. The next in the series is the judgment of Yvas, J. Bank of Maharashtra & Ors. v. S.S.Joshi & Ors. [Summons for Judgment No. 731 of 1991 in Suit No. 3684 of 1990] delivered on 28th February, 1994. This was a summary suit filed on 8 Bills of Exchange, which were admittedly accepted by the Defendants. One of the defences appeared to be that the Summons for Judgment not having been taken out within 6 months, unconditional leave should be granted. Even Vyas, J. was of the opinion that Rule 227 of the 1980 Rules vests wider discretion in the Court, especially in view of the fact that there was no defence on merits. The submission of the Defendants was rejected and, inasmuch as the learned Judge was of the view that there was no defence at all, he made the Summons for Judgment absolute, and passed the decree as prayed for. We find that the said submission was rejected only on the ground that Rule 227 gave the Court a wider discretion.

22. In M/s. Randerian & Singh Pvt.Ltd. & Ors. v. Indian Overseas Bank [Appeal No.1060 of 1986 in Summons for Judgment No.307 of 1986 in Summary Suit No.3212 of 1985], S.K.Desai, J., speaking for the Division Bench, was of the view that under the Rules of this Court, strict conditions are imposed on the Defendants in a summary suit, and it logically followed that there were equally stringent requirements postulated on the Plaintiffs. One of these requirements would be that they must not in the suit make a claim not falling within the parameters of Order 37. We have been taken through this judgment also, and we do not find that the issue, which confronts us, has been answered, except for the general observations that the Plaintiff must also be put to equally stringent requirements.

23. Though the judgment of another Division Bench in Hydraulic and General Engineering Ltd. & Anr. v. UCO Bank, [1998 I L.J. 793] was cited, upon careful perusal of the judgment , we do not find any principle discussed therein, which has bearing on the controversy before us.

24. In United Western Bank Ltd. v. Marmago Steel Ltd. [1999 (1) LJ 341 : (1999(1) ALL MR 385)], Nijjar, J. was also concerned with the issue as to what the Court should do when in the plaint a claim is made which does not fall within the strict norms of Order 37. Following the earlier view expressed in M/s.Randerian & Singh (supra), Nijjar, J., took the view that in such a situation recording a statement of Counsel that in case a decree was made, it would be exclusive of the interest claimed beyond the norms of Order 37 would be insufficient. The learned Judge was of the view that the Court had discretion as to whether to permit the Summons for Judgment to be withdrawn and enable the Plaintiff to take out fresh Summons for Judgment after amending the plaint or to grant unconditional leave. He also took the view that there was refusal to exercise that discretion on the part of Vyas, J., while decreeing the suit and that the interpretation put by Vyas, J., on Rule 227 of the 1980 Rules was contrary to the law laid down by the Division Bench in M/s. Randerian & Singh (supra) as perhaps the judgment had not been brought to the notice of Vyas, J. On the facts before him, Nijjar, J., held that, inasmuch as the plaintiffs Counsel admitted that a claim had been made in the plaint, which could not fall within the parameters of Order, 37, unconditional leave to defend the suit had to be granted. Here again, the controversy is neither addressed, nor answered.

25. In State Bank of India v. Aaren Exports & Anr. [1997 V LJ 240], Radhakrishan, J., was persuaded to grant unconditional leave to defend the suit on the ground that more than two years had elapsed from the filing of the plaint to taking out of the Summons for Judgment. The learned Judge did this by following what was done in Central Bank of India (supra) without any further discussion or reason.

26. In Al-Mayat Export Pvt.Ltd. v. Arcadia Shipping Ltd., unreported judgment in Summons for Judgment No.385 of 1997 in Summary Suit No. 1584 of 1995, D.G.Deshpande, J., in his order dated October 6, 1998, followed Central Bank of India (supra), and granted unconditional leave to defend the suit without any further discussion of the principle on which it was to be done.

27. In BOI Finance Ltd. v. Padma Alloy Casting Pvt. Ltd. & Ors. [AIR 1999 Bombay 340 : (1999(3) ALL MR 376)]. this issue was canvassed at length before the learned Single Judge, Rebello, J.In fact, the issue raised for the consideration of the learned Single Judge was "(g) Whether on account of delay in moving Summons for Judgment, by reading Rule 227 of the High Court (O.S.) Rules, defendants are entitled to unconditional leave to defend?" There is considerable discussion on the issue in the judgment. After referring to all the judgments cited at the Bar, commencing from Central Bank of India and a series of Judgments following thereupon, the learned Judge took the view that he was not inclined to agree with the view taken by the various Single Judges of the Court holding that if there is delay in taking out the Summons for Judgment, unconditional leave to defend the suit should be granted as a matter of course. The learned Judge found that Rule 227 of the 1980 Rules gave discretion to the Court to dismiss the suit, but that if the suit was not dismissed, it would not follow that the Defendant, who may have no defence whatsoever, had a right of getting unconditional leave. The learned Judge derived support from the principles on which unconditional leave is granted, as enumerated by the judgment of the Supreme Court in M/s. Machalec Engineering and Manufacturers v. M/s. Basic Equipment Corporation [AIR 1997 SC 577] and another judgment of the Supreme Court in Sunil Enterprises v. S.B.I.Commercial and International Bank Ltd.[1998 (5) SCC 354]. We shall have occasion to deal with the said two judgments later.

28. Turning back to the judgment of Rebello.J., in BOI Finance Ltd. (supra), we find that the learned Judge felt that there were conflicting decisions of Vyas, J., and other Single Judges, and though, in the ordinary course, he could have referred the matter to larger Bench for decision, he was not inclined to do so in view of the law laid down by the Apex Court in M/s. Machalec Engineering and Sunil Enterprises (supra). He rejected the contention of the defendants that they were entitled, as a matter of course, for leave to defend the suit, as the Summons for Judgment had not been taken out within 6 months by saying:

"Leave to defend as held by the Apex Court, is based on the defences which are disclosed in the affidavit in support of leave to defend. Unless, apart from that, there is a statutory provision which adds to the defences,in my opinion, Rule 227 cannot be pressed to provide for a defence not provided for either in construction of Rule 227 of the Rules or by the law laid down by the Apex Court."

The learned Judge, therefore unhesitatingly rejected the contention. For reasons which we shall shortly adumbrate, we are of the view that the law has been somewhat rigidly stated in the judgment of Rebello.J., when the learned Judge holds that the application for leave to defend the suit must be decided only on the basis of the defence raised and upon no other consideration. To that extent, we are inclined to hold that the judgment does not decide the law correctly.

29. There may be several reasons why a Summons for Judgment may not been taken out within 6 months. Some of the reasons could be difficulty in serving the Writ of Summons, delay on the part of the Court Registry and so on. Would it advance the cause of justice, if the Court were to say that when on account of such over-riding circumstances there is delay in taking out the Summons for Judgment, then the Defendant, who may conceivably have no case to defend, should be granted unconditional leave to defend the suit? In our view, the extreme view canvassed to this effect is inconsistent with the policy underlying Order 37 as well as advancement of the cause of justice.

30. A Division Bench of this Court had occasion to deal with a somewhat connected argument in Steel Engineering Co. & Ors. v. Jawaharlal Dalamchand, Appeal No.99 of 1972 in Summary Suit No.43 of 1972 (per Tulzapurkar & Mukhi, JJ.) dated 19th September, 1972. The argument that was made was that the summary suit itself had been filed almost three years after the claim in the suit had become due and, therefore, the Defendant should be entitled to unconditional leave to defend the suit on the ground that the expedition that becomes due to a vigilant claimant under Order 37 cannot be claimed by the indolent Plaintiff. The Division Bench rejected the contention by observing that the circumstance that a summary suit is filed almost at the fag end of three years limitation after the claim became due is, by itself, no ground for granting unconditional leave to defend the suit. The Division Bench thereafter observed:

"It is conceivable that this circumstance, taken along with the other circumstances in the case, may render an issue raised by the Defendants a triable one, but the circumstances that there has been delay in filing the suit almost three years after the claim has become due cannot, in our view, be a ground for granting unconditional leave to defend. It is also not possible to subscribe (to) the view that the summary procedure under Order XXXVII cannot be claimed by a plaintiff who has filed his suit at a belated stage, for it is quite conceivable that such refrain on the part of the plaintiff might be due to the fact that he might desire to save costs of the litigation and might try to avoid visit (of) such costs on the defendant and there might be several other reasons which could legitimately refrain the plaintiff from not taking legal action immediately after the claim becomes due."

With great respect, we are in total agreement with the view expressed in this judgment. The thinking is unmistakable; that indolence on the part of the Plaintiff, per se, is no ground for granting unconditional leave to defend, but is a relevant factor to be considered together with the merits of the defence as affecting the exercise of judicial discretion to grant conditional or unconditional leave to defend or to refuse leave to defend the suit. In our view, with respect, this judgment correctly lays down the law and we are in agreement with it.

31. We are not inclined to accept the contention for the Plaintiffs that in the exercise of the discretion to grant conditional leave or refuse leave to defend the suit, the discretion is to be moulded only by the nature of the defence. In our view, the judgments of the Supreme Court in Santosh Kumar v. Bhai Mool Singh [AIR 1958 SC 321] and in M/s. Machalec Engineering (supra) do not lay down any such proposition of exclusion as contended by the Defendants.

32. Now, we may take up for consideration the judgments of the Supreme Court relied in support of this proposition by the learned Judge, Rebello, J., as well as Counsel for the Defendants who appeared at the Bar.

33. In Santosh Kumar v. Bhai Mool Singh [AIR 1958 SC 321], the Supreme Court was concerned with a situation arising under Order 36, Rule 2(2), as it then stood. The Supreme Court pointed out that the spirit in which questions about procedure are to be approached and the manner in which rules relating to them are to be interpreted were laid down in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya [AIR 1955 SC 425 at 429], where it was pointed out:

"Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

Dealing with specific situation, the Supreme Court pointed out that it was always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion. Said the Supreme Court in paragraph 10:

"Taken, by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts."

34. In Machalec Engineering & Manufacturing v. M/s. Basic Equipment Corporation [AIR 1977 SC 577], the Supreme Court was interpreting Order 37 of the Code of Civil Procedure, upon application by the Defendant to give leave to appear and to defend the suit, upon facts "which disclose such facts as would make it incumbent on the holder to prove consideration on such other facts as the Court may deem sufficient to support the application". The Supreme Court referred to the observations in Santosh Kumar (supra) and quoted with approval the principles laid down by the Calcutta High Court in Smt. Kiranmoyee Dessi v. Dr. J.Chatterjee [(1945) 49 Cal WN at p.253]. The propositions laid down by the Calcutta High Court and approved by the Supreme Court are as under:-

"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the xxxx defendant by enabling him to try to prove a defence."

35. A careful perusal of these propositions would suggest that proposition (a) applies where the defendant has good defence to the claim on its merits; proposition (b) arises in a situation where the defendant has a fair, bona fide or reasonable defence to defend, although not a positively good defence; proposition (c) arises if the defendant would be entitled to leave to defend on such conditions which the Court may impose as to the time or mode of trial without any payment into Court or furnishing security; proposition (d) indicates that defendant is in a situation where there is no reasonable defence or the defence set up is illusory or sham or practically non-existent. Ordinarily, the plaintiff would be entitled to leave to sign judgment and the defendant is not entitled to leave to defend. In our view, between propositions (a) to (d), all conceivable situations of various degrees of defence, from good to illusory, were covered by the Supreme Court and there could have existed no other category of defence. Yet, the Supreme Court proceeded to deal with such a situation. In proposition (e), the situation contemplated is one in which there being no defence or defence being illusory, sham and/or practically moonshine, the Supreme Court holds that, though ordinarily the Plaintiff is entitled to a decree, the Court may protect the plaintiff by granting conditional leave to defend the suit upon deposit or security for the amount claimed and "thereby show mercy to the defendant by enabling him to try to prove a defence". In our considered view, this last category of cases is one which calls for exercise of judicial discretion. The defendant has no defence, or has a defence which is nothing but illusory, sham or moonshine, and yet mercy is sought to be shown to the defendant to give him an opportunity of defending the suit, by putting him to terms as to deposit or security.

"the quality of mercy is not strain'd, It droppeth as the gentle rain from heaven Upon the place beneath; It is twice bless'd; It blesseth him that gives and him that takes;"

Said the Bard of Avon through the mouth of Portia in Merchant of Venice. Why should the quality of mercy be strained? Why should not consideration of the conduct of the plaintiff enter the picture and affect the discretion of the Court? In our view, judicial discretion has to be exercised upon a consepectus of all circumstances; if conduct is to be considered, then, the conduct of both sides must be considered before exercising judicial discretion. In our reading of the Supreme Court judgment, the judgment in Machalec Engineering (supra) does not rule out other factors affecting judicial discretion to grant conditional or unconditional leave in a situation where the defendant has no defence on merits whatsoever. Considering that the Supreme Court has approvingly cited the judgment in Santosh Kumar (supra), we are not inclined to read Machalec Engineering (supra) as ruling out consideration of indolence or negligence on the part of the plaintiff as irrelevant in deciding the application for leave to defend.

36. There is yet another reason which veers us to this view. The Supreme Court in Machalec was considering Order 37, which required the Court, while considering an application to grant leave to appear and defend the suit, to consider "such facts as it would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application". Even on the wording of the Order, which was under consideration by the Supreme Court, apart from the issue of proving consideration, the Court had discretion to consider such other facts as may be deemed sufficient by the Court to support the application. Undoubtedly, the judgment dealt with the defences raised. The judgment follows with approval the ratio of the Calcutta High Court in Kiranmoyee Dassi (supra), and has laid down 5 propositions as guidelines for granting conditional or unconditional leave to defend. On a careful reading of the judgment, we are of the view that this judgment does not lay down that the Court's discretion is narrowed down to considering only and but only the defences and not the conduct of the Plaintiff. The expression "such other facts as the Court may deem fit" was wide enough to consider the negligence, indolence or lethargy of the Plaintiff as one of the facts. Apart from this aspect of the matter, the implication of Rule 221 did not fall for consideration before the Supreme Court. In fact, Sub-rule (ii) of Rule 221 provides that the defendant may apply for leave to defend the suit by filing an affidavit (a) showing that he has a good defence to the suit on the merits or (b) "disclosing such facts as may be deemed sufficient to entitle him to defend". In our view, the second clause is wide enough to confer jurisdiction on the Court to consider the conduct of the plaintiff as a factor influencing its discretion. This is especially so in view of the fact that under Sub-rule (iv) of Rule 221, even in a case where the defendant does not apply for leave to defend, or if such an application is made and refused, the Court has been invested with discretion to decline a decree for the plaintiff.

37. The underlying public policy behind Order 37 is expeditious disposal of suits of commercial nature. This public policy would not be subserved if the plaintiff, after adopting the summary remedy, takes inordinately long time to take out a Summons for Judgment; nor would it be subserved if merely on the ground that the Plaintiff has taken more time than prescribed by Rule 227, unconditional leave is to be granted to the defendant as a matter of course. It is in this area that judicial discretion has to be exercised. The Court, in our judgment, is empowered to consider, even in a case of delay on the part of the plaintiff, the merits of the defence and then take an overall view as to whether leave should be granted to defend the suit conditionally or unconditionally or whether such leave should be refused. Otherwise, it would mean that even in a case where the defence is totally illusory or chimerical, the defendant could claim unconditional right to defend the suit as a matter of right merely on the ground of plaintiff's delay. The better view to take would be that the Court would have to balance the lack of promptitude on the part of the plaintiff against the nature of the defence raised in the affidavit by the defendant and decide whether to grant unconditional or conditional leave or to decline leave to defend the suit.

38. Reliance is placed on the judgment of the Supreme Court in Raj Duggal v. Ramesh Kumar Bansal [1992 Sup (1) SCC 191]. A perusal of this judgment does not suggest that the Court, while considering the application of the defendant for leave to defend the suit, is precluded from looking at the conduct of the plaintiff, nor does it indicate that such conduct of the plaintiff in not acting within the time prescribed by the procedural rule is wholly irrelevant factor affecting exercise of judicial discretion.

39. The judgment of the Supreme Court in Kalipada Das & Ors. v. Bimal Krisna Sen Gupta [AIR 1983 SC 876] is relied upon to contend that taking out the Summons for Judgment is a procedural requirement thereby facilitating rendering justice; that it is procedural step in aid of justice and not substantive justice itself. True that Court's orders have to be obeyed, but penalty for failure to comply with Court's order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If a penalty imposed is disproportionate to the gravity of the lapse or omission, the procedural stage, instead of becoming a step in aid of justice, would be a road block to justice. We wholeheartedly agree. Hence, we say that failure of the plaintiff in taking out the Summons for Judgment within the period of 6 months need not necessarily lead to dismissal of the suit and there is always discretion in the Court to condone that delay, ex debito justiciae. Arjan Lal Varma & Anr. v. Shmt. Rawal Kaur [AIR 1982 Delhi 148] was pressed into service to contend that the mere failure of the defendant to serve the notice of his entering appearance on the plaintiff or his counsel could not result in a summary judgment and decree against the defendant merely on the ground of failure to serving notice of entering appearance. With respect, the proposition laid down by the learned Single Judge of the Delhi High Court is correct; but it does not facilitate us in resolution of the controversy before us.

40. Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, [AIR 1969 SC 1267] was also relied upon to persuade us to the view that the rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused relief merely because of some mistake, negligence, inadvertence, or even infraction of the rules of procedure. Though the principle was adumbrated in connection with the discretion of the Court to refuse an application for amendment, it is equally applicable to the infraction of the procedural rule on the part of the Plaintiff. Hence, we say that mere infraction of the time limit in Rule 227, without more, cannot and ought not to result in unconditional leave being granted to the defendant.

41. Pritam Singh v. High Court of Madhya Pradesh [AIR 1992 SC 904 at paragraphs 24 and 41] and Manohar Lal Chopra v. Rai Bahadur Hiralal [AIR 1962 SC 527 at paragraph 23] were cited to show that a Chartered High Court has inherent powers, which enable the Court to take into account the default on the part of the plaintiff in conjunction with the defence put forward while considering an application for leave to defend the suit. In our view, it may not be appropriate to fall back on the inherent powers of a Court for this purpose for two reasons. First, summary suits are not entertained exclusively by High Court; second, it is trite law that where there is provision in the Act or the Rules made thereunder, it would be inappropriate to fall back on inherent powers of the Court.

42. The judgment of this Court in Hawabai v. Abdual Sattar Oomer [(1995) 2 BCR 551 at 553] supports the argument that a person who choose to take advantage of a summary remedy must also be bound by the disadvantages thereunder. A person who chooses to file a suit under Section 6 of the Specific Reliefs Act and chooses the summary procedure, therefore, must necessarily have to comply with the limitation for filing the suit as prescribed thereunder and not fall back on the limitation prescribed under the Limitation Act.

43. It is contended that, if there is delay in taking out a Summons for Judgment, condonation thereof is itself a triable issue, and, therefore, unconditional leave to defend the suit ought to be granted to the Defendant. This contention, in our view, is fallacious. The stage for considering the application for leave to defend commences only after the exercise of power of condonation of delay under Rule 227. Delay in taking out Summons for Judgment may result in the suit being placed on the board of the Chamber Judge for dismissal. At that stage, the defendant is not even in the picture. What transpires is purely between the Court and the Plaintiff. The plaintiff has to satisfy the judicial conscience that there were circumstances under which dismissal of the suit would render injustice. Upon this being done, the suit would not be dismissed. Hence, the argument that it raises a triabal issue is misconceived. It is further contended for the Defendants that in such a case the discretion having already been exercised in favour of the Plaintiff by not dismissing the suit, imposing a condition for granting leave to defend the suit would amount to exercise of discretion twice over in favour of the Plaintiff. This contention, too, is untenable. The two exercises are distinct, though not necessarily unconnected. First, is at the stage of Rule 227 to decide whether the suit deserves to be dismissed on the ground of delay in taking out the Summons for Judgment. Second, is to decide whether leave should be granted for defending the suit. In addition to the merits of the defence, the Court is required, in our view, to keep the conduct of the plaintiff also in mind. If the delay in taking out the Summons for Judgment is unconscionable, it could well affect the discretion of the Court in granting unconditional leave or in imposing conditions on the leave to the defend the suit. To postulate that in every case, irrespective of the nature of the defence, the factor of delay in taking out the Summons for Judgment alone should result in unconditional leave to defend the suit, would make the judicial discretion hamstrung and defeat the public policy underlying the procedure for summary suits.

44. It is then argued for the Defendants that Order 37 is a self-contained Code and while exercising discretion thereunder to grant conditional or unconditional leave to defend the suit, or to refuse such leave, the Court is not entitled to look into any factors other than those stipulated in the order itself. In our judgment, this contention too is unsound. In the first place, Order 37, Rule 3, Sub-rule (5) itself postulates that the Defendant has to apply for leave to defend by disclosing in his affidavit or otherwise "such facts as may be deemed sufficient to entitle him to defend". In addition to the provision of this rule, we also have Sub-rule (iv) of Rule 221, which applies on the Original Side of the High Court, which vests discretion in the Court to pass or not to pass a decree even if the Defendant fails to apply for leave to defend or such application is refused by the Court. It is, therefore, not possible for us to accept this extreme contention.

45. The contention of the Plaintiffs that the delay in taking out the Summons for Judgment is wholly irrelevant, which seems to have appealed to Rebello., J., in BOI Finance Ltd. (Supra), does not appear to be justified. As we have already pointed out, the discretion to permit a party to adopt a summary procedure or to relegate him to the procedure of ordinary suit is always that of the Court, unless it is taken away by express words used by the Legislature. Neither in Order 37, nor in the applicable High Court Rules, do we find any such attempt to take away this power of the Court. Hence, we are unable to accept the argument that the discretion of the Court comes to an end the moment Rule 227 is worked out. We are also unable to read propositions (a) to (d) in Machalec Engineering (supra) as exhausting the discretion of the Court. If that were so, there would have been no need for the Supreme Court to postulate proposition (e) (vide paragraph B). In fact, proposition (e) is precisely a case where the defence is sham, illusory or moonshine. It would certainly not be conducive to justice in such a situation that mercy is to be shown only to the Defendant while granting him conditional leave, and while exercising the discretion, the conduct of the plaintiff in not diligently pursuing the suit by taking out a Summons for Judgment in time is to be wholly ignored.

46. The judgment of the Supreme Court in Oil and Natural Gas Corporation Ltd. v. State Bank of India [JT 2000(8) SC 141] does not touch upon the issue before us. That was a case where the Supreme Court decided on the facts before it that, in fact there was no defence for suit filed and, accordingly, set aside the order of the High Court granting unconditional leave to defend the suit to the Defendant. The judgment does not indicate as to whether the delay in taking out Summons for Judgment, was considered as a material or influencing factor in affecting judicial discretion.

47. The Order of the Supreme Court in M/s.Larsen & Toubro Ltd. v. Arun Kumar Mansingka [JT 2000(4) SC 556] only records that four years had elapsed from the date of filing of the suit and, in the circumstances, the High Court's order was modified by granting leave to defend the suit, subject to condition mentioned therein. The Order does not help us in dealing with the issue before us.

48. The judgment in Mademsetty Satyanarayana v. G.Yelloji Rao and Ors. [AIR 1965 SC 1405] was cited to contend that judicial discretion must be exercised in accordance with the sound and reasonable judicial principles, and that it cannot be arbitrary or capricious. We respectfully agree. That is the reason why we are inclined to take the view that judicial discretion should be exercised while granting leave to defend the suit, and it cannot be put into a strait-jacket.

49. Sunil Enterprises & Anr. v. SBI Commercial & International Bank Ltd. [(1998) 5 SCC 354] reiterated the position in law laid down in Santosh Kumar (supra) and Machalec Engineering (supra) briefly. The very same 5 propositions initially formulated by the Calcutta High Court in Kiranmoyee Dassi, and reiterated in Machalec Engineering (supra) and Santosh Kumar (supra) appear in paragraph 4 of this judgment.

50. The judgment of the Supreme Court in Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas [AIR 1965 SC 1144] was relied upon in support of the proposition that inherent powers of the Court are to be exercised by the Court in very exceptional circumstance and not where there are no specific provisions of law for the purpose of doing justice.

51. The Full Bench of the Kerala High Court in G.K.Prabhakaran & Co. v. David Traders [AIR 1973 Kerala 1] was cited to canvass the proposition that no party has a right to insist on the Court exercising inherent jurisdiction, which is to be exercised in very exceptional circumstances for which the Code lays down no procedure. The Legislature has made detailed provisions in the Code for various matters. If there are express provisions in the Code covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. We have already accepted this proposition of law.

52. The judgment in Ambalal Purusottamadas & Co. v. Jawarlal Purushottam Dave & Ors. [AIR 1953 Cal. 758] was relied upon for the purpose of showing the objective of Order 37. This was a case where Order 37 was challenged on the ground that it introduced an arbitrary classification unconnected with the objective to be achieved and makes invidious distinction from cause to cause. The learned Single Judge rejected the contention by holding that Order 37 of the Code is not unconstitutional, as the difference made between defendants in ordinary suits and defendants in suits based on negotiable instruments and the like was based on good reason supporting the classification, and that the comparison between the two classes of suits showed that they were not similarly circumstanced. The learned Judge highlighted the importance of commercial cases in Court, and, therefore, held that the differentiation made was constitutionally justifiable.

53. The judgment in Laxmidas Devidas Kapadia v. Mathuradas Dwarkadas [57 Bom.L.R. 1118], rendered by a Division Bench of our High Court, also reiterates the constitutional validity of Order 37 and the distinction made between Defendants in ordinary suits and Defendants in commercial suits by highlighting that where there is a commercial litigation, commercial men must and should get expeditious justice in respect of documents and transaction which are commercial in their nature which require quick disposal in order to give security and confidence to commercial men who are to a large extent responsible for the prosperity of the particular region or city where they reside and carry on their business or commerce.

54. For the aforesaid reasons, we decide the questions referred to us as under :-

Question:(1) What is the legal consequence of a summons for Judgment not being taken out by a Plaintiff within the period of 6 months of the plaint being filed ?

Answer: The suit is liable to be placed on the board of the Chamber Judge for dismissal. It is open to the Plaintiff to contend before the Chamber Judge that for good reasons the suit ought not to be dismissed. It is left to the judicial discretion of the Chamber Judge to dismiss the suit or direct it to proceed on such terms as he deems fit.

Question: (2) Upon such failure of the Plaintiff, is the Defendant, as a matter of course, entitled to unconditional leave to defend the suit, irrespective of the merits of the defence ?

Answer: A delay in taking out Summons for Judgment beyond the period of 6 months prescribed by Rule 227 does not automatically entitle the Defendant to unconditional leave to defend the suit; but it is a relevant factor to be considered in conjunction with the nature of the defence while granting conditional or unconditional leave to defend the suit or refusing the application for leave to defend.

55. We, accordingly, answer the reference made to us.

56. We appreciate the able assistance accorded to us by Counsel on both sides in finding a resolution to the vexed problem posed before us.

Order accordingly.