TaxTMI 
TaxTMI 
2023 (1) TMI 1398
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....ers/Plaintiffs payable on demand after the due date of June 26, 2015, which however is silent on interest payable, if any. Defendant issued letter dated August 5, 2015 to Plaintiffs confirming receipt of amount of Rs. 50,00,000/- towards business loan, undertook to repay the same and issued two post dated cheques of bearing date October 30, 2015 for Rs. 50,00,000/- towards principal amount and Rs. 2,33,333/- towards interest. Additionally, one more Bill of Exchange was executed by Defendant for the said amount of Rs. 50,00,000/- with due date of October 30, 2015. On presentation, the cheques were dishonoured with the remark 'insufficient funds'. 3. After coming across a public notice regarding auction of properties of Respondent/Defendant, notice dated June 28, 2019 was issued at the behest of Plaintiffs demanding the due amount alongwith interest. The Defendant replied the notice on August 9, 2019 disputing the notice and raising the defence of Plaintiffs not possessing licence under the provisions of Maharashtra Money-Lending (Regulation) Act, 2014. Plaintiffs presented Summary Suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (for short '....
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....d principles on interpretation of provisions of Order XXXVII Rule 3 of the Code. Mr. Jain would then take me through the provisions of Order XIII-A of the Code introduced by way of amendment in Commercial Courts Act, 2015 providing for Summary Judgment. He would submit that the provisions of Order XIII A of the Code are even wider than the provisions of Order XXXVII of the Code. He would further submit that Defendant failed to file reply to the application for Summary Judgment as mandated under Order XIII A, Rule 3 of the Code. Since the claim of Plaintiffs is virtually admitted, the Court ought to have pronounced judgment on the claim or in the alternative at least passed a conditional order under clause (b) of Sub-rule 1 of Rule 6 of Order XIII A of the Code. 6. Per contra, Mr. Davar the learned Counsel appearing for Respondent/Defendant would oppose the Petition and support the order passed by the City Civil Court. He would submit that the application filed by Plaintiffs for Summary Judgment under the provisions of Order XIII A of the Code was not maintainable in view of provisions of sub-rule 3 of Rule 1 of Order XIII-A of the Code. He would submit that the Suit was originally....
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....5 has been enacted with an intent to improve efficiency and to prevent delay in disposal of commercial cases and that in the event of a Court arriving at a conclusion that there is no reasonable prospect of success for the Defendant, the claim has to be allowed by pronouncing a Summary Judgment. Though not fully relevant to the present case, he would contend that the scope of provision of summary judgment is now so wide which would cover even a claim for damages. 10. Rival contentions of the parties now fall for my consideration. 11. Before adverting to the merits of the contentions raised by rival parties, it is necessary to first resolve the controversy as to whether the application for Summary Judgment of the Petitioners/Plaintiffs is required to be considered under the provisions of Order XXXVII or Order XIII A of the Code. This confusion is created essentially on account of reliance by Mr. Jain on provisions of Order XXXVII of the Code as well as on judgment in IDBI Trustee-ship Services Limited vs. Hubtown Ltd. (supra) laying down broad principles on the issue of grant of leave to defend under those provisions. These submissions created an impression as if the Petitioners/P....
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....ned. Relying on provisions of sub-rule (3) of Rule 1 of Order XIII A of the Code, Mr. Davar has contended that since the suit was initially filed as a summary suit, the provisions of Order XIII-A of the Code would have no application to Plaintiffs' suit. Sub-rule (3) of Rule 1 of Order XIII A of the Code reads thus: "(3) Notwithstanding anything to the contrary, an application for summary judgment under this Order shall not be made in a suit in respect of any Commercial Dispute that is originally filed as a summary suit under Order XXXVII." 14. Here again, there is some degree of dispute as to whether the suit was initially filed as a summary suit or not. It was undoubtedly presented as a summary suit. It was however registered as Commercial Suit by the Court on its own. Whether act of 'presentation' would amount to 'filing' within the meaning of sub-rule 3 of Rule 1 of Order XIII A of the Code will have to be decided. Undoubtedly sub-rule 3 of Rule 1 of Order XIII A of the Code uses the word 'filed', and not 'presented' or 'registered'. I could have proceeded to determine this controversy, however, I find that it is not necessary to d....
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....summary judgment has been discussed. It is held in paragraphs 39, 40, 44, 45, 48, 49, 50 and 52 as under: "39. The Commercial Courts Act, 2015 has been enacted with the intent to improve efficiency and reduce delay in disposal of commercial cases. The relevant portion of the Statement of Objects and Reasons of the Commercial Courts Act, 2015 is reproduced hereinbelow:- "to have a streamlined procedure which is to be adopted for the conduct of cases in the Commercial Courts and in the Commercial Divisions by amending the Code of Civil Procedure 1908, so as to improve the efficiency and reduce delays in disposal of commercial cases. The proposed case management system and provisions for summary judgment will enable disposal of commercial disputes in a time bound manner. (emphasis supplied) 40. Amended Order XIIIA of CPC, as applicable to commercial disputes, enables the Court to decide a claim or part thereof without recording oral evidence. Order XIIIA of CPC seeks to avoid the long drawn process of leading oral evidence in certain eventualities. Consequently, the said provision enables disposal of commercial disputes in a time bound manner and promotes the object of the Com....
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....nder Order XIIIA of CPC is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII of CPC. 52. Consequently, this Court is of the opinion that there will be 'no real prospect of successfully defending the claim' when the Court is able to reach a fair and just determination on the merits of the application for summary judgment. This will be the case when the process allows the court to make the necessary finding of fact, apply the law to the facts, and the same is a proportionate, more expeditious and less expensive means to achieve a fair and just result." 17. No doubt Commercial Court is required to pronounce summary judgment in the event it finds that there would be no real prospect of the Defendant successfully defending the claim. It is, therefore, necessary to examine whether there is a possibility of Defendant in the present case defending the claim. 18. True it is that Defendant failed to file reply to the Application seeking Summary Judgment. However, Written Statement of Defendant has been filed and taken on record. Therefore, defences raised to the claim of the Plaintiffs are available for cons....
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....is court is in a position to record a finding with degree of certainty that Defendant has no real prospect of successfully defending the claim. Therefore, no case was made out for City Civil Court to pronounce a summary judgment on the claim of Plaintiffs under Order XIII Rule 6 of the Code. 22. This leads me to the alternative submission made by Mr. Jain that even if summary judgment could not have been pronounced on Plaintiffs' claim, the City Civil Court could have atleast made a conditional order under Order XIII-A, Rule 7 of the Code, which read thus: "6. Orders that may be made by Court. --(1) On an application made under this Order, the Court may make such orders that it may deem fit in its discretion including the following:-- (a) judgment on the claim; (b) conditional order in accordance with Rule 7 mentioned hereunder; (c) dismissing the application; (d) dismissing part of the claim and a judgment on part of the claim that is not dismissed; (e) striking out the pleadings (whether in whole or in part); or (f) further directions to proceed for case management under Order XV-A. (2) Where the Court makes any of the orders as set forth in sub-rule (1)(a) t....
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....ble issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend. 17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security. 17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5. ....