Maharashtra State Co-operative marketing Federation Ltd., Bombay vs Indian Bank, Bombay

DR B. P. Saraf, J.—An important and interesting question of law for the consideration in these appeals of as to whether Section 10 of the CPC 1908 ("CPC") would apply to summary suits under Order XXXVII of the CPC.

The facts of the case giving in rise of this controversy, briefly stated, are as follows:

A summary suit was filed by the Indian Bank (respondents herein) against the Maharashtra State Co-operative Marketing Federation Ltd. (appellants herein ) for recovery of a sum of Rs. 4,96,59,160.25. It is was filed on 6th February, 1992. In the said suit a notice of motion was taken out by the original defendant (appellate herein) for stay of the trial of the above suit in view of the fact that the matter in issue of the view the said suit was also directly and substantially in issue in a suit previously instituted the appellants against he respondents in this Court numbers as Suit NO 400 of 1991 which was pending. The case of the appellants was that the matter in issue in the summary suit filed by the respondents against appellants was directly an substantially in issued in above previously instituted suit. The contention of the appellants therefore was that the subsequent suit instituted by the respondents should be stated pending the hearing the final disposal of the previously instituted suit.

On receipt of the summons for judgment in the above summary suit, the appellants also filed the their affidavit-in-reply in the summons the judgment. Both the notice the motion for stay of the summary suit u/s 10 of the CPC as well as the summons for judgment the were taken up by the learned single judge of consideration of 24 the October 1994. The learned Single Judge on hearing the parties, rejected the notice the motion taken out by the appellants as he was of the opinion that Section 10 of the C.P.C did not apply to summary suits under Order XXXVII, Rules 2 and 3 of the of the C.P.C. The learned single Judge held that Section 10 of the CPC applies only to ordinary suits and not to summary suits under Order XXXVII of the C. P. C. The learned Single Judge also heard the summons for judgment and on such hearing directed the appellants (original defendants) to deposit a sum of rupees four crores as a condition for leave to defend the suit. Appeal No. 954 of 1994 is directed against the dismissal of the notice of motion taken out by the appellants for stay of the summary suit u/s 10 of the CPC. Appeal No. 953 of 1994 is directed against the order of the learned singe Judge directing the appellants to deposit a sum of the rupees four crores as a condition to defendant the suit.

We have heard the learned counsel for the parties on the question of applicability of the Section 10 of the CPC of suits under Order XXXVII of the CPC. The submission of the learned counsel for the appellants is that the summary suit instituted under Order XXXVII is also is suit which is triable like any order suit except with the difference that in such is suit the trial to the conducted in accordance with the special procedure laid down in Rules 2 to 7, Order XXXVII. It is, contended that in that vie of the matter, provisions of Section 10 will be application to summary suits under order XXXVII with the same force as they as applicable of other suits. Reliance is placed in support of this contention on a Division Bench decision of this Court in Indian Express Newspapers (Bombay) Ltd. Vs. Basumati Private Ltd., , where it was held that a defendant is a summary suit under Order XXXVII is entitled to apply to the Court for stay for the subsequently instituted suit. Our attention was also drawn to object the scheme of Order XXXVII of the CPC in support of the contention that order XXXVII contemplate trial of a suit and a judgment in pursuance thereof. The contention of the learned counsel of the respondents on the other hand, is that there is no trial whatsoever in the case of summary suits under order XXXVII. According to him in a summary suit under Order XXXVII, there can be a decree without trial and hence question of stay of trial u/s 10 of the CPC can never arise in the case of such suits.

We have given of our careful consideration to the rival submission of the counsel for the parties and perused the provision the Section 10 of the CPC and Order XXXVII. Section 10 provides for stay for suit if the circumstances set out therein. It reads as follows:

"10. Stay of suit -- No Court shall proceed with the trial of any stay in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court In India having jurisdiction the grant the grant of relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation -- The pendency of a suit in a foreign Court does not preclude the Courts in India form the trying the suit founded on the same cause of the action."

Section 10 thus mandates the Court not to proceed with the trial of the any suit is which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The provision of stay in this section are mandatory. The object of this section is to prevent Courts of concurrent jurisdiction the form simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. Though the heading of this section is "stay of suit", it does not operate of a bar of the institution of the subsequent suit. It is only the trail of the suit that it not to be proceeded with.

The question that arises for consideration is whether provision of Section 10 would be applicable to a suit instituted as a summary suit under order XXXVII of the CPC. In other words, the question the determination is whether any trial is envisaged in a summary suit order under XXXVII which can be stayed by resort of Section 10. For a proper appreciation of the contrary, it is necessary to examine the scheme of the Order XXXVII and the special classes of suits for and the object and purport thereof.

Order XXXVII provides for a summary procedure in respect of certain suits. Originally this Order was confined to suits on negotiable instruments and was confined to the superior Courts, though is its application to Bombay, it is amended by the High Court of Bombay to extend its application to the Bombay City Civil Court, Bombay, the Presidency Small Cause Court, Bombay and such other Courts as may be empowered by the High Court. However, by the CPC (Amendment) Act, 1976 (Act 104 of 1967 ) Rule 1 of this Order was substituted to provided the extending the summary procedure to the trial of the specified classes of cases by the Courts. The substituted sub rule (1) of Rule (1) in its application to the State Maharashtra was substituted by the Bombay High Court by a new sub-rule (1) with effect form 1-10-1983. Rule 1 of the Order XXXVII (as amended by the Bombay High Court) reads as follows:

Court and classes of suits of which the order it apply -- (1) This order shall apply to the following Courts, namely:--

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

(b) Such other Courts as may be specifically empowered in this behalf by the High Court form time to time by a Notification the Official Gazette:

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

(2) Subject to the provision of sub-rule(1) the Order applies to the following classes and suits, namely:--

(a) suits upon by the bills of the exchange hundies and promissory notes;

(b) suits in which the plaintiff seeks only to the recover a debt or liquidated demand of money payable to the defendant, with or without interests 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 penalty; or

(iii) on a guarantee, where can claim against the principal is in respect of a debt or liquidated demand only.

Rule 2 of Order XXXVVII deals with the institution of summary suits. It provides for issue of summons of the defendants in Form No. 4 in Appendix B which requires the defendants to enter appearance within ten days form the service thereof. It is stated in the said summons that in the event of the default of the defendants to appear, the allegations in the plaint shall be deemed to have been admitted and the plaintiffs shall be entitled to a decree for the sum specified therein. If the defendants enters an appearance in response to the summons, he is served with summons for judgment in Form 4A is Appendix B. The recitals in Form 4 A are as follows:

"Upon reading the affidavit of the plaintiff the Court makes the following order, namely:--Let all parties concerned attend the Court or Judge, as the case may be, on the day of 19 , at the O''clock in the forenoon on the hearing the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or it against one or some or several inserted names) for Rs. and for interest and costs."

On receipt of the summons for judgment, the defendants, may at any time within ten days form 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 of Judge to be just.

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

Rule 7of Order XXXVII provides that serve as provides in the said order, the procedure in suits under the said order shall be the same as the procedure the suit instituted in the ordinary manner.

Form the above summary of the provisions of Order XXXVII it is clear that the essence of the summary suit is that the defendants is not, as the ordinary suits, entitled as of right to defend the suit. He must apply for leave to defend with ten days form the dated of the service of the summons upon the him and such leave will be granted only if the affidavit filled by the defendants discloses such facts as all 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 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. There is thus a "trial" in a summary suit though by the summary procedure. The Court gives a hearing the parties on the summons for judgment and may refuse to grant leave to defend if it finds 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 vexations. In that event the plaintiff is entitled to judgment forthwith. If he is given leave to defend, the suit shall be decided by the same procedure as applicable to suits instituted ordinary manner.

It is obvious form the above discussion that in a summary suit also there is trial by the Court, though by the summary procedure laid down in Order XXXVII, before a decree is passed. The procedure of trial is set out in Rule 3. It starts with the service of summons for judgment in Form 4A in Appendix B on the defendants and ends with the hearing on such summons for judgment, wither with a judgment the or with leave to defend in which case further trial will be held which will be trial of suits instituted in the ordinary manner. The "trial" the has not been defined in the CPC. According to the appellate it is word in the wide import and the connotes in the entire proceeding the before the Court after the institution of the suit. According to the respondents, "trial" means that hearing of the suit which commences only after settlement of the issues. "Trial'' according the respondents consists of examination the witnesses, hearing of arguments etc. The contention of the respondent is that in summary suit under the Order XXXVII trial commences the moment the defendant enters appearance and is served with the summons for judgment.

We have considerable rival submission in regard to the meaning the word "trial". It appears to us that the though the word "trial". It appears to us that though the word "trial" standing by itself is susceptible of both the narrow the and the wider meaning, in the context and setting of order XXXVII, "trial" has to be construed the mean the entire the proceeding the before the Court the after the defendant enters appearance and is served with summons for judgment until the pronouncement of the Judgment.

We are supported in our above conclusion by the decision the Supreme Court in Harish Chandra v. Tarilok Singh reported in AIR 1957 SC 44. In that case the Supreme Court was called upon ascertain the meaning the word "trial" the Section 90(2) of the Respondents of the People Act ( as it stood at that time). The contention of the appellate in the above cases before the Supreme Court was that the word "trial" must be understood in a limited sense a meaning the final hearing the petition, consisting the examination the witness, filing documents and addressing arguments. According to the respondents, it meant the entire proceedings before the Tribunal form the time that the election petition the was transferred to it until the pronouncement of the award. On consideration of these rival submissions, the Supreme Court observed:

"While the word ''trial'' standing upon the itself is susceptible of both the narrow and the wider sense indicated above, the question is what meaning attaches to its in Section 90(2), and to decide that, we must have regard to the context and the setting of the enactment."

After elaborate discussion on the wider and narrower meaning the word "trial" and on a reading of Chapter III of the said of as a whole, the Supreme Court held that in word "trail" was used in Section 90 (2) as meaning the entire proceedings before the Tribunal form the time when the election petition was transferred to it until the pronouncement of the award.

We are the also supported in our conclusion in regard to applicability of Section 10 of the CPC to summary suits under Order XXXVII by a Division Bench decision of this Court in Indian Express Newspapers (Bombay) Ltd. Vs. Basumati Private Ltd., where it was held that a defendants in a summary suit is entitled in apply to the court for stay of the subsequently instituted suit. The reason for this conclusion was summed up thus:

"This is so because the true instant of the provisions in Section 10 is that common matter in issue is two suits should be ordinarily decided in a previously instituted suit."

We have also give our careful consideration to the decision of a single Judge the this Court in Sujanbai Haribhau Kakde and Others Vs. Motiram Gopal Saraf and Another, where it was held that the word "trial" has been used in Section 10 of the CPC in the narrow sense namely, the final hearing the suit consisting the examination of witnesses, filing documents and addressing arguments. We however find it difficult to accept the above interpretation the word ''trial'' of Section 10 of the CPC. In our view, the meaning the word ''trial'' in Section 10 will very depending the upon the subject the context.

The learned counsel for the respondents, at this stage, contended that the first suit filed by the appellants is vexations suit and, that being so, appellants cannot be allowed to get the trial of the subsequently filed suit the respondents stayed. We have given our anxious consideration to the above submission. We, however, do not find any merit in the same because the well settled legal position that the provision of Section 10 of the CPC do not become inapplicable on the Court holding that the previously instituted suit is a vexation suit. Reference may be made in this connection to the decision the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, where it was held:

"The provision of the section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceedings with the trial of the suit in certain specified circumstances..........The provision of Section 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexations the suit or has been instituted in violative of the terms of the contracts."

In view the above the discussion, we are of the clear of opinion of that Section 10 is also applicable to the summary suits which are to be tried by the special procedure the laid down in Order XXXVII of the CPC. There is no dispute in this case in regard to the fact that subsequent suit was for recovery of the amount under a letter of credit, being letter of the credit No. 12 of 1989 and that the very same the letter of the credit was subject-matter of the earlier suit. That the being so, in our view, the Section 10 of the CPC clearly applies and the trial of the subsequent suit under Rules 3 of the Order 37 has to be stayed.

In the result appeal no 954 of 1994 is allowed. The impugned order of learned single Judge dismissing the notice of motion is set aside. The notice of motion the made absolute in terms of prayer clauses (a) which reads as follows:

(a) that the hearing the above suit in the proceedings therein by stated pending hearing and final disposal of the prior suit pending in this Hon''ble court being suit No. 400 of 1991."

In view of the above order of appeal no 954 of 1994, the learned counsel for the parties are agreed the order the trial Court in Summons for judgment No. 278 of the 1992 which is impugned in appeal No 278 of the 1994 will also have to get set aside Accordingly we set aside and the order of the trial Court in the summons the for judgment the NO 278 of the 1992 by which the appellate is directed to deposit a sum of Rs. Four Crores for the leave to defend the suit.

IN the result the both the appeals are allowed. In the facts the and circumstances off the case there shall be no order as to costs.

Appeal allowed.