S. Suit No.1686 of 2000,S. Suit No.1687 of 2000,S. Suit No.1519 of 2000

19th January, 2009

Petitioner Counsel: Mr. JAMSHED ANSARI,S. Mahomedbhai and Co.
Respondent Counsel: Ms. PRACHI KHANDGE,Mr. M. P. VASHI

Cases Cited:
Central Bank of India Vs. Femme Pharma Ltd., AIR 1982 Bombay 67 [Para 3]
Sunil Enterprises Vs. SBI Commercial & International Bank Ltd., (1998)5 SCC 354 [Para 3]
United Western Bank Ltd. Vs. Marmago Steel Ltd., 1999(1) ALL MR 385=1999(1) Mh.L.J. 730 [Para 3]
BOI Finance Limited Vs. Padma Alloy Casting Private Ltd., 1999(3) ALL MR 376=1999(4) Bom.C.R. 218 [Para 3]
Bankay Bihari G. Agrawal Vs. M/s. Bhagwanji Meghji, 2000(2) ALL MR 10=AIR 1999 Bombay 340 [Para 3]
Leela Capital Finance Limited Vs. Modiluft Ltd., 2001(1) ALL MR 337=2001(2) Bom.C.R. 110 [Para 3]
Bankay Bihari G. Agrawal Vs. M/s. Bhagwanji Meghji, 2001(1) ALL MR 1=2001(1) Mh.L.J. 345 [Para 4]

JUDGMENT

JUDGMENT :- These three suits have been filed by the plaintiffs i.e. Union Bank of India as Summary Suits under the provisions of Order 37 of the Code of Civil Procedure. The suits were filed in the year 2000. The suits appeared before this Court on 5th January, 2009 for filing of the affidavits of evidence and documents of the plaintiffs i.e. for hearing and final disposal. On that day it was pointed out by the learned Advocate appearing for the defendants that the suit should be dismissed under Rule 227 of the High Court (O.S.) Rules since the plaintiffs have till date i.e. for the last 8 years not taken out the summons for judgment in any of the three suits as required under Order 37, Rule 3(4) of the Code of Civil Procedure, 1908. Thereafter, the suits were adjourned to 7th January, 2009 and 14th January, 2009 to enable the learned Advocate for the plaintiffs to seek instructions and be ready to make his submissions. On 14th January, 2009, the suits were directed to be placed today for dismissal under Rule 227 of the High Court (O.S.) Rules.

2. Rule 227 of the High Court (O.S.) Rules reads thus :

"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 of 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 of the plaintiff by sending a letter to him by post under certificate of posting."

3. The learned Advocate appearing for the plaintiffs has tendered the following six judgments of this Court in support of his submission that the Court has discretion under the said Rule and the Court may not dismiss the suit in a case where sufficient cause is made out.

i) Central Bank of India Vs. Femme Pharma Ltd. (AIR 1982 Bombay 67).

ii) Sunil Enterprises and anr. Vs. SBI Commercial & International Bank Ltd. ((1998)5 SCC 354);

iii) United Western Bank Ltd. Vs. Marmago Steel Ltd. (1999(1) Mh.L.J. 730 : [1999(1) ALL MR 385]);

iv) BOI Finance Limited Vs. Padma Alloy Casting Private Ltd. and others (1999(4) Bom.C.R. 218 : [1999(3) ALL MR 376]);

v) Bankay Bihari G. Agrawal and others Vs. M/s. Bhagwanji Meghji and others (AIR 1999 Bombay 340 : [2000(2) ALL MR 10]); and

vi) Leela Capital Finance Limited Vs. Modiluft Ltd. (2001(2) Bom.C.R. 110 : [2001(1) ALL MR 337]).

4. I have perused all the above six judgments. However, in all these cases the plaintiffs had taken out the Summons for Judgment after six months. There is not a single case in which summons for judgment is not taken out at all. It is, therefore, decided in the above cases that upon the sufficient ground/s being shown the Court may not dismiss the suit. There were also conflicting views of different benches of this Court on the issue as to whether unconditional leave should automatically be given as a matter of course in cases where summons for judgment is taken out beyond a period of six months. The said controversy was put to rest by a decision of the Division Bench of this Court in Bankay Bihari G. Agrawal and others Vs. M/s. Bhagwanji Meghji and others reported in 2001(1) Mh.L.J. 345 : [2001(1) ALL MR 1]. The reference referred to the Hon'ble Division Bench is answered in paragraph 54 of the said Judgment which is reproduced hereinbelow.

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

Question : (1) What is the legal consequences 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 decree ?

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."

5. From the combined reading of the above two questions and answers, it is obvious that the Hon'ble Division Bench of this Court has considered the consequences of a summons for judgment not taken out within a period of 6 months of the plaint being filed i.e. delay in taking out a summons for judgment beyond the proscribed period of six months, but not the consequences of a summons for judgment not taken out at all after filing of the suit as in the instant case. The question, therefore, of considering any reasons or using judicial discretion in a case where summons for judgment is not taken out at all does not arise, and the suits ought to be dismissed under Rule 22 of High Court (Original Side) Rules.

6. In these three suits admittedly the plaintiffs have not taken out Summons for Judgment till date. The three suits for the aforestated reasons are dismissed under Rule 227 of the High Court (Original Side) Rules.

Suits dismissed.