Summons for Judgment No.936 of 2001,Summons for Judgment No.260 of 2002,Summons for Judgment No.261 of 2002,Summons for Judgment No.272 of 2002,Summons for Judgment No.275 of 2002,Summons for Judgment No.329 of 2002,Summons for Judgment No.373 of 2002,Summons for Judgment No.521 of 2002,Summary Suit No.285 of 2001,Summary Suit No.3763 of 2001,Summary Suit No.3762 of 2001,Summary Suit No.74 of 2001,Summary Suit No.4331 of 2001,Summary Suit No.4330 of 2001,Summary Suit No.4329 of 2001,Summary Suit No.3969 of 2001,Summary Suit No.3566 of 2001,Summary Suit No.372 of 2002

4th March, 2004

Petitioner Counsel: V. R. DHOND,by Mehta Laljee , Co., Ms. SHAH,K. D. SHAH, AJAY PANICKER, H. R. SHETTY & Ms. S. S. PATRA
Respondent Counsel: DINSHU ZAIWALA,Ms. K. KALYANIWALA

Cases Cited:
Ajcon Capital Markets Limited Vs. Maya Rasayan Ltd., (2003)6 BCR 810 [Para 3,17,20,21]
M/s Randerian and Singh Vs. Indian Overseas Bank, Appeal No.1060/1986 in Summons for Judgment No.307/1986 in Summary Suit No.3212/1985, Dt.:24/2/1987 [Para 3,6,7,9,14,18,20,22]
Hydraulic and General Engineering Vs. UCO Bank, (1998)1 L.J. 793 [Para 3,6,8,18,19]
Harkishore Jain & Sons Pvt. Ltd. Vs. Central Bank of India, Appeal No.1149/1985 in Summons for Judgment No.346/1985 in Summary Suit No.727 /1984, dt: 17-2-1986 [Para 23]
M/s Randerian & Singh Vs. Indian Overseas Bank and Hydraulic & General Engineering Vs. UCO Bank, (1998) 1 L.J.793 [Para 28]

JUDGMENT

S. J. VAZIFDAR, J.:- The above Summons for Judgment appeared before the learned single Judge who, by a common order dated 22nd July, 2003, opining that they may be more advantageously heard by a larger bench, placed the matters under Rule 28 of the Bombay High Court (Original Side) Rules, before the Hon'ble Chief Justice for making an appropriate orders for constituting a larger Bench. The Hon'ble Chief Justice by an order dated 14th November, 2003 constituted a larger Bench to which one of us (S. J. Vazifdar. J) was a party. As the earlier Full Bench was unable to hear the matters, the present Bench was constituted to hear the reference.

2. The earlier Full Bench on 25th November, 2003, framed, for convenience, the following four questions of law :-

(i) Whether the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure 1908 can be invoked while exercising powers under Order XXXVII of the Code of Civil Procedure and deciding a summons for judgment/application for leave to defend a summary suit instituted under Order XXXVII, Rule 1(2) thereof?

ii) Whether third option of abandoning a part of the claim in a summary suit is available to a plaintiff at the hearing of the summons for judgment or the options set out in two Division Bench judgments of this Court in M/s Randerian and Sing Vs. Indian Overseas Bank and Hydraulic and General Engineering Vs. UCO Bank are exhaustive ?

iii) Whether the Division Bench decision in Ajcon Capital Markets Limited Vs. Maya Rasayan Limited granting a third option as aforesaid is in accord with the summary procedure prescribed by Order XXXVII of Code of Civil Procedure ?

iv) When at the hearing of a Summons for judgment, the Court finds that a part of the claim in the Summary suit, falls outside the scope of Order XXXVII of the Code of Civil Procedure, 1908, what are the options available to the plaintiff and what powers can the Court exercise?

3. The above suits were filed under Order XXXVII of the Code of Civil Procedure, 1908. It appears from the said order of the learned single Judge that one of the contentions of the defendants in most of the matters was that there was no contract to pay interest and that the rate at which interest was claimed was excessive and not in accordance with the contract. The learned counsel appearing on behalf of the plaintiff therefore sought, orally to give up a part of the claim which was not within the contract. This application was sought to be supported on behalf of the plaintiff by relying upon a judgment of a Division Bench of this Court in Ajcon Capital Markets Limited Vs. Maya Rasayan Limited, (2003)6 BCR page 810.

The application was objected to by the learned counsel appearing on behalf of the defendants. The objection was founded on two Division Bench judgments of this Court in M/s Randerian and Singh Vs. Indian Overseas Bank (Appeal No. 1060 of 1986 in Summons for Judgment No.307 of 1986 in Summary Suit No.3212 of 1985) decided on 24th February, 1987 and Hydraulic and General Engineering Vs. UCO Bank, (1998)1 L.J. 793.

4. Order XXXVII of the Civil Procedure Code reads as under :

"1. Courts and classes of suits to which the Order is to apply- (1) This Order shall apply to the following Courts, namely :-

(a) High Courts, City Civil Courts and Courts of Small Causes ; and

(b) other Courts :

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1), the Order applies to the 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.

2. Institution of summary suits.- (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 tile of the suit, namely:-

"(Under Order XXXVII of the Code of Civil Procedure, 1908)."

(2) The summons of the suit shall be in Form No.4 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, upto 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.

3. Procedure for the appearance of defendant.-

(1)............................................

(2.............................................

(3)............................................

(4)............................................

(5) 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, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious :

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant, to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) 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 is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(4)...................................

(5)...................................

(6)...................................

7. Procedure in suits.- Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner."

5. The defendants contend that if any part of the claim made in a summary suit is in excess of what the plaintiff is actually entitled to the defendant is ipso facto entitled to unconditional leave or at the highest the plaintiff may be permitted to withdraw the summons for judgment with liberty to take out a fresh summons for judgment after amending the suit to bring its claim in conformity with what the plaintiff is actually entitled to. The plaintiff, it is contended, is not entitled to give up a part of the claim by making an oral application in that behalf.

6. The defendant's contention is sought to be supported by the judgment in Randerian's case which was followed inter alia in the case of Hydraulic and General Engineering. As we shall shortly indicate, the decision in Randerian's case is contrary to two previous Division Bench judgments of this Court. Unfortunately, these judgments were not brought to the notice of the learned Judges who decided Randerian's case. We may mention though that one of the Judges who was a party to the Judgment in Randerian's case was also a party to the judgments in the previous cases.

7. In Randerian's case, the Division Bench noted that the plaintiff had made a statement before the learned Single Judge to the effect that it was restricting the claim for interest to 6% on the principal sum instead of at 16.5% as claimed in the plaint. The statement was recorded. The learned Single Judge granted the defendants leave to defend conditional upon their depositing a part of the plaintiff's claim within a stipulated time. The defendant filed an Appeal against the said order. While allowing the Appeal, the Division Bench held as under :-

"Under the Rules of this Court strict conditions are imposed on the defendants in a summary suit. They must file their appearance in Court within a very short specified period and failure to do so entitled the plaintiffs to obtain an ex-parte decree against them. It must logically follow that there must be equally stringent requirements postulated on the plaintiffs. One of these requirements would be that they must not in the suit make a claim not warranted by the contract or under a statutory provision. If it can be demonstrated as it can be in the instant case, that the plaintiffs have in the plaint made a claim for interest not warranted by the statutory provision or by the contractual document, then the suit must be one which cannot be accepted as a summary suit. Once this is demonstrated, one of two consequences must follow. The first and the more obvious is to grant to defendants unconditional leave to defend the suit and transfer the same to the appropriate cause list long cause, short cause or commercial cause. The present case would fall in the last category. There is another way open and that is for the plaintiffs who are faced with such defence in the affidavits made on the summons for judgment with liberty to take out a fresh summons for judgment after amending the plaint and putting their house in order. Recording of a statement to give up or accept reduced interest is not sufficient."

8. This judgment was followed inter alia by a Division Bench in Hydraulic General Engineering Vs. UCO Bank.

9. We are unable to agree with the ratio in Randerian's case to the effect that if the plaint contains a claim for interest not warranted by a statutory provision or by the contractual document then the suit must be one which cannot, be accepted as a summary suit.

10. Order XXXVII, Rule 1(2) enumerates the classes of suits to which the order applies. If the claim does not fall within the classes so enumerated the suit cannot proceed under Order XXXVII i.e. it cannot be filed as a summary suit. Thus for instance a suit inter alia to enforce a mortgage not being one specified in Order XXXVII, Rule 1(2) is not maintainable as a summary suit.

11. This however is quite different from a case where in a suit, belonging to a class specified in Order XXXVII, Rule 1(2), a claim in excess of the contractual entitlement or statutory provision is made. Take for instance a case where in a suit filed on a negotiable instrument that stipulates a 12% per annum rate of interest, interest is claimed in the plaint at 18% per annum. The claim for the additional 6% is not maintainable in the sense that it is not sustainable under the document on which the suit is filed or under any statutory provision. But the suit would nevertheless be maintainable as a summary suit for being based on a negotiable instrument, it falls within one of the classes of suits enumerated in Order XXXVII. Its class as being a suit upon a negotiable instrument remains unaffected for the class of a suit is not dependant on the sustainability of the quantum of the claim made therein.

12. In other words, a distinction must be drawn between the sustainability of a claim and the maintainability of the action as a summary suit. The negation of the former does not entail the negation of the latter. A suit can be said to fall outside the ambit of order XXXVII only if the relief claimed therein is based on an action the nature of which does not fall within the classes specified in Order XXXVII, Rule 1(2). A relief cannot be said to fall outside the ambit of Order XXXVII, Rule 2 merely because the quantum thereof is excessive, so long as the nature of the relief falls within the clauses specified in Order XXXVII, Rule 1(2).

13. If the quantum of the claim in suit is not sustainable it is but a factor to be considered by the Judge while deciding and passing an order on the summons for judgment. The tests for the exercise of jurisdiction while passing an order on a summons for judgment have been settled in a plethora of cases including of the Apex Court. In this reference, we are not concerned with the same.

14. We will now assume that when a part of the claim is not warranted by a statutory provision or by the contractual document on which the suit is based, the suit must be one which cannot be accepted as a summary suit as held in Randerian's case. Even so, we are also unable to agree with the ratio in Randerian's case that in such an eventuality only one of two consequences must follow viz. either to grant unconditional leave to defend or to permit the plaintiff to withdraw the summons for judgment with leave to file a fresh summons for judgment after amending the plaint. Nor are we able to agree with the further ratio that "Recording of a statement to give up or accept reduced interest is not sufficient".

15. Firstly, we see no legal bar to the plaintiff abandoning a part of his claim. Order XXIII, Rule 1 expressly permits him to do so. Order XXIII reads as under:

"1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in the opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff -

(a) abandons any suit or part or part of claim under sub-rule (1),

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-mattter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs."

16. Order XXIII and in any event principles analogous thereto are applicable to Order XXXVII. There is nothing to suggest that they do not. In fact, Order XXXVII, Rule (7) provides that the procedure in suits filed thereunder shall be the same as the procedure in suits instituted in the ordinary manner. It cannot seriously be suggested that a plaintiff is not entitled to withdraw a suit filed under Order XXXVII or to compromise the same. If he can do so we see no reason why he cannot abandon a part of his claim in a suit filed under Order XXXVII.

17. It would be convenient at this stage to refer to the judgment of the Division Bench in Ajcon's case which gave rise to this reference.

18. A similar question fell for consideration before the Division Bench in Ajcon's case. Here the plaintiff had given the defendants an inter-corporate loan of Rs.25,00,000/- for two months at an alleged agreed rate of interest of 27% p.a. The defendant had also executed a demand promissory note. The defendant's cheques issued towards the repayment of the loan were dishonoured. The loan was renewed. The cheques towards the repayment of the renewed loan were also dishonoured which led to the plaintiff filing a suit under Order XXXVII of the Civil Procedure Code. The principal defence was that as per the promissory note, interest could have been charged only at 18% p.a., whereas the plaintiff had claimed interest, at the rate of 27% p.a. that there was no written agreement between the parties entitling the plaintiff to charge interest at 27% p. a. and that the suit therefore was not maintainable as a summary suit.

The learned Single Judge granted the defendants leave to defend the suit conditional upon their depositing Rs. 30,00,000/- within a stipulated period.

This order was challenged in Appeal. Reliance was placed on behalf of the appellant on Randerian's case and in the case of Hydraulic & General Engineering. On behalf of the respondent/plaintiff, it was submitted that in fact interest had been calculated at 18% p.a. in the plaint and alternatively even if it was found that a part of the claim was excessive, they had an option to give up that part of the claim so that the suit could be tried as a summary suit. The respondent/plaintiff therefore sought leave to amend the claim by substituting new particulars of claim. This application was objected to on behalf of the appellant by placing reliance on Randerian's case and in the case of M/s Hydraulic & General Engineering.

The Division Bench proceeded on the basis that the plaintiff having sought leave to amend the claim conceded the position that they had made some claim which was not triable in the summary jurisdiction of the Court under Order XXXVII of the Civil Procedure Code. The question that fell for consideration was whether the plaintiff can in a summary suit give up a part of the claim made in the plaint without it being necessary for them to withdraw the summons for judgment.

The Division Bench held that in Randerian's case, only two options or consequences were contemplated and that in Randerian 's case, the Court had not considered the possibility or an option available to the plaintiff to make a motion before the same Court which was hearing the summons for judgment for permission to delete that part of the claim made in the suit which cannot be tried in the summary jurisdiction.

It was held :-

"Perusal of the provisions of Rule 1 quoted above shows that if the plaintiff wants to give up or abandon apart of the claim made in the suit, he can do so at any time and it is not necessary for him to seek permission of the Court to do so. Leave of the Court for abandoning a part of the claim becomes necessary if the plaintiff intends to institute a fresh suit for recovery of the claim which is being abandoned in the suit which is pending before the Court. If the plaintiff does not desire to institute a fresh suit for the abandoned claim, then the plaintiff can give up or abandon a part of the claim made in the suit without seeking any permission or leave from the Court. It is further clear that when a plaintiff abandons a part of the claim made in the suit without seeking leave of the Court, he cannot institute a fresh suit for that claim and he also becomes liable for such costs as the Court may impose. In other words. Rule 1, of Order XXIII of Civil Procedure Code confers on a plaintiff an absolute right to give up a part of his claim. Therefore, when a plaintiff in a summary suit finds that because of a particular claim made by him in the summary suit, his entire claim in the suit becomes incapable of being tried as a summary suit, he has an option of abandoning that particular claim and if the plaintiff does not desire to institute a fresh suit for that claim, he need not even make an application to the Court for leave of the Court. A mere statement made by the plaintiff before the Court that he wishes to abandon that part of the claim would be enough. It is further to be seen here that the reason why such a right is given to the plaintiff is that by the plaintiff abandoning a part of his claim no prejudice is caused to the defendant and therefore, a provision has been made that if the plaintiff proposes to institute a fresh suit for the abandoned claim, then he has to seek leave of the Court. It is obvious that when the plaintiff applies for such a leave, the Court will decide it after granting an opportunity of being heard to the defendant because grant of such leave to the plaintiff may result in causing prejudice to the interest of the defendant. It is further to be seen here that the provisions of Rule 1 of Order XXIII of Civil Procedure Code do not contemplate even an application being made by the plaintiff when the plaintiff wants to abandon a part of his claim without any leave to institute a fresh suit for the abandoned claim. The application would be necessary only in case the plaintiff wants the Court to grant him leave to institute a fresh suit for the abandoned claim. The abandonment of part of the claim can be done by the plaintiff voluntarily by an unilateral act of the plaintiff. In such a situation, the only procedure to be followed would be that the plaintiff makes statement before the Court that he abandons a part of his claim and the Court records that statement. Therefore, when in a summary suit at the hearing of the summons for judgment, a plaintiff finds that because of a particular claim made by him, the defendant is likely to get unconditional leave to defend the suit, it is open to the plaintiff to make a statement before the Court that he abandons that part of the claim and requests the Court to consider only that claim for which a summary suit can be entertained." (emphasis supplied).

19. The Division Bench in Ajcon's case proceeded on the basis that a wrongly quantified claim or a claim not warranted by a statutory provision or by the contractual document is one which cannot be accepted as a summary suit. It is necessary therefore to reiterate what we have already held in this regard viz. that the mere making of an excess claim would not render the suit not maintainable as a summary suit so long as the action falls within one of the classes enumerated in Order XXXVII, Rule 1(2).

20. Subject to this caveat, we are in respectful agreement with the above observations in Ajcon's case, affirm the same and have nothing to add thereto. We therefore overrule Randerian's case where it is held that a recording of a statement to give up or accept reduced interest is not sufficient.

21. We are also in respectful agreement with the judgment in Ajcon's case which holds that in such a case there are not merely two options as held in Randerian s case. We are unable to see any purpose in driving a plaintiff to first withdraw the summons judgment, thereafter amend his plaint and finally take out a fresh summons for judgment. Such a course serves no useful purpose whatsoever. The same result can be achieved by the plaintiff merely making a statement at the bar. To amend the plaint, the plaintiff would be required under the rules to take out a chamber summons which itself would take a few years to be decided. Thereafter, the plaintiff would necessarily have to go through the procedure of taking not a fresh summons for judgment. Such a cumbersome course is not mandated by any of the provisions of the Criminal Procedure Code The defendant cannot possibly toe prejudiced if the plaintiff is not made to suffer such a laborious, time consuming and cumbersome procedure. Mr. Zaiwalla was unable to indicate any reason why such a course should be adopted except stating that if it were not so it would encourage plaintiffs to take a chance by making unsustainable claims in the first instance. The reasoning does not appeal to us as justifying a conclusion in law contrary to the true construction of Order XXXVII.

22. The view that we have taken is in fact supported by two unreported Division Bench judgments of this Court rendered about a year prior to Randerian's case which as we have observed were not brought to the notice of the learned Judges, who decided Randerian's case.

23. In Harkishore Jain & Sons Pvt. Ltd. Vs. Central Bank of India & Ors. (Appeal No.1149 of 1985 in Summons for Judgment No.346 of 1985 in Summary Suit No.727 of 1984, date of Judgment 17-2-1986), the defendant filed an Appeal against an order granting them conditional leave. The only plea taken in the Appeal was that the plaintiff/respondent had claimed interest on interest. It was admitted on behalf of the plaintiff/respondent that the interest claimed in the plaint was excessive. In these circumstances, the Division Bench in its judgment held as under:

"In our opinion when no defence is disclosed in respect of a substantial portion of the suit which exceeds 90%, the proper order on the summons for Judgment should be a decree for the claim in suit for which no defence is disclosed and unconditional leave to defend for the claim for which there is some defence which in these two cases would have been for Rs.9,200/- and Rs.5,600/- only (Approximately)."

Thus, the Division Bench expressly held that even when a part of the claim is unsustainable, it is open to the Court to pass a decree for that part of the claim for which there is no defence and unconditional leave to defend for that part of the claim for which there is some defence.

By the same process of reasoning it would be open in such a case for the Court to pass a conditional order in respect of that part of the claim which the Court finds to be sustainable and unconditional leave for that part of the claim for which the Court finds there is some defence. That this may be done is clear from the plain language of Order XXXVII, Rule 3. There must however be a caveat added here. In such a case it would logically follow that the consequence of non-fulfilment of the condition would apply only to that part of the claim which the Court considers sustainable and not to that part of the claim in respect of which unconditional leave is granted.

24. In Refrigeration and Machinery Corporation Vs. Dena Bank (Appeal No.226 of 1986 in Summons for Judgment No.451 of 1985 in Suit No.2014 of 1985 dated 31-3-1986), the Appeal was again preferred by the defendant against whom the Chamber Judge had passed an order granting conditional leave to defend the suit, filed under Order XXXVII. The suit was based on four bills of exchange. The learned Single Judge found that the defendants were entitled to unconditional leave only in respect of one of the bills of exchange. As far as the other three bills of exchange were concerned, conditional leave to defend was given to the defendants on their depositing a certain amount. After dealing with each of the hundies, the Appeal Court found that prima facie, the defendant had raised some defence in respect of two hundies. The Appeal Court therefore only modified the amount ordered to be deposited by the learned Single Judge. The Division Bench repelled the submission on behalf of the appellant/defendant that since they had a defence in respect of two out of four hundies, they should have unconditional leave in respect of the entire claim in the suit. The Division Bench held as under:

"We are however unable to accept Mr. Doctor's submission that since the defendants have a defence in respect of the two hundies which defence the Court has found to be triable and not merely raisable, the defendants should have unconditional leave in respect of the entire claim in the suit. In our opinion, suitable modification of the impugned order is required whilst maintaining the broad approach of the Chamber Judge which approach we do not accept as being incorrect or improper at least in this Appeal."

The caveat we added earlier would also apply in such a case.

25. The plaintiff is not bound to abandon a part of its claim so long as the suit is maintainable as a summary suit. So long as the suit is maintainable as a summary suit, even if at hearing of the summons for judgment it is found that the claim is in excess of what is warranted by the contractual document or a statutory provision, it would be open to the Court in the exercise of its discretion to pass an order other than an order of unconditional leave to the defendant to defend the suit even if the plaintiff does not abandon his claim in respect of such part of the claim. It would be open to the learned Judge to grant conditional leave or pass a decree in respect of a part of the claim which he believes to be properly quantified, and unconditional leave in respect of that part of the claim which he thinks is excessive. The only caveat we would add here is that in such a case it would logically follow that the consequence of the defendant failing to comply with the condition would entail the defendant being deprived the opportunity of defending the suit only to the extent of the claim in the suit which the learned Judge finds is properly quantified. For it cannot be that a failure to comply with the condition should result in a decree for the entire claim including the claim in respect of which unconditional leave is granted.

26. The view that we have taken is, we believe, in conformity with the objects underlying the summary procedure. The statement of objects and reasons in respect of Order XXXVII of the Civil Procedure Code reads as under :-

"Clause 87, Sub-clause (i). - Order 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 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 the superior Courts. Rule 1 is being substituted to provide for extending the summary procedure to the trial of the specified classes of suits by all Courts." (emphasis supplied.)

27. To hold to the contrary would defeat the object underlying the summary procedure to prevent unreasonable obstruction by a defendant who has no defence. It would result in the plaintiff being deprived of the benefit of the summary procedure merely because a part of the claim may have been wrongly quantified. This is too technical a view. It would denude Order XXXVII of its commercial efficacy. As we have observed earlier, the view that we have taken cannot possibly prejudice a defendant qua his case in respect of that part of the claim for which he has a valid defence or a triable case.

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 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.

29. The office is directed to place the above summons for judgment before the appropriate Court to be decided in accordance with this judgment.

Order accordingly.