Special statute prevails over summary procedure when mandatory court duties require defendant participation in money-lenders suits

A special statutory procedure under the Bombay Money-lenders Act, 1946 was treated as incompatible with summary procedure under Order XXXVII CPC because Sections 21 and 29 imposed mandatory duties on the court to frame and decide issues and to take accounts or make adjustments in suits covered by the Act. Since a conditional leave regime would prevent effective participation by the defendant in proceedings where those statutory duties had to be performed, the commentary concludes that unconditional leave to defend was required. Section 30 was viewed as a separate, permissive debtor's right and not a basis to dilute the mandatory obligations under Sections 21 and 29.

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Issues: Whether, in a summary suit governed by the Bombay Money-lenders Act, 1946, unconditional leave to defend had to be granted because the mandatory requirements imposed on the Court by Sections 21 and 29 could not be worked out under Order XXXVII of the Code of Civil Procedure, 1908.

Analysis: The provisions of Sections 21 and 29 of the Bombay Money-lenders Act impose mandatory duties on the Court to frame and decide specified issues and to take accounts or make appropriate adjustments in suits to which the Act applies. Order XXXVII, by contrast, restricts the defendant's ability to defend and permits a decree to follow upon failure to obtain or comply with leave to defend. The resulting scheme would prevent the defendant from participating in proceedings in which the Act requires the Court to perform statutory duties. Section 30, which confers a permissive application right on the debtor, was treated as distinct from the mandatory obligations created by Sections 21 and 29. The conclusion was that the statutory obligations under the Money-lenders Act could not be effectively reconciled with a conditional leave order in such a suit.

Conclusion: Unconditional leave to defend had to be granted; the conditional leave order was set aside.

Ratio Decidendi: Where a special statute casts mandatory duties on the Court in suits to which it applies, a summary procedure that prevents the defendant from participating cannot be used to defeat those statutory obligations, and unconditional leave to defend must be granted to preserve the operation of the special Act.

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