1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 347 OF 2008 IN SUMMARY SUIT NO. 1933 OF 2008 Kotak Mahindra Investment Limited .. Plaintiff V/s Dilip Kumar Sukhadia .. Defendant Mr. Ashish Kamat with Ms. Tanmayi Gadre, Ms. Meenakshi Mhapankar and Mr. Nikhil Rajani i/b V. Deshpande & Co. for the plaintiff. None for the defendant. CORAM : D.G. KARNIK, J. DATE OF RESERVING THE ORDER : 4TH APRIL 2009 DATE OF PRONOUNCING THE ORDER: 18TH JULY 2009 P.C. : 1. Heard learned counsel for the plaintiff. None present for the defendant. 2. The case of the plaintiff, stated shortly, is that Mahindra & Mahindra Ltd. (for short “M & M”) appointed the defendant as a dealer. A written dealership agreement was executed between M & M and the defendant on 2 30th October 2000. M & M supplied goods to the defendant from time to time and a sum of Rs.46,24,580.31 was due and payable by the defendant to M & M. M & M securitised the dues payable to it by the dealers and by a deed of assignment dated 31st March 2007, it assigned to the plaintiff the right to recover the securitised dues payable by several of its dealers including the defendant. The plaintiff as an assignor issued a notice of demand to the defendant on 28th March 2008, but the defendant failed and neglected to make the payment. The plaintiff has therefore filed this suit for recovery of money. 3. The suit is filed as a summary suit under Order 37 of the Code of Civil Procedure. An averment to that effect is made in para 14 of the plaint. 4. The summons for judgment was taken out by the plaintiff and was served on the defendant. However, none appears for the defendant at the hearing of the summons for judgment. In my view, the suit is not maintainable as a summary suit for the reasons indicated below. 5. Sub-rule (2) of Rule 1 of Order 37 of the Code of Civil Procedure (for short “the Code”) provides that the following classes of suits, namely: “(a) suits upon bills of exchange, hundies and promissory notes; 3 (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.” Admittedly, the suit does not fall under clause (a). So far as clause (b) of sub-rule (2) of Rule 1 of Order 37 of the Code is concerned, the suit also does not fall under sub-clauses (ii) and (iii) thereof. Learned counsel for the plaintiff, however submitted that the suit falls under sub-clause (i) of clause (b) of sub-rule (2) of Rule 1 of Order 37 of the Code. A written contract of dealership executed between M & M and the defendant. There is no written contract between the plaintiff and the defendant. Money is therefore not due to the plaintiff under a written contract entered into between it and the defendant. 7. Even if for the sake of argument it is assumed that a suit under summary procedure can be filed on the basis of a written contract between 4 the defendant and M & M and a written assignment made by M& M to the plaintiff still, in my view, the defendant would be entitled to an unconditional leave to defend the suit for the reasons briefly indicated below. 8. The plaintiff has not produced on record all the invoices and delivery challans showing delivery of goods and the value thereof. Copy of only one delivery challan is produced at Exhibit-D to the plaint. The delivery challan only shows that three parts mentioned therein were delivered by M & M to the defendant. The delivery challan however does not bear the signature of the defendant and there is no proof of the delivery of goods. Further more, the value of the goods supplied under the delivery challan is also not mentioned in the delivery challan. Office copies of invoices pertaining to the deliveries are also not produced. Though the plaintiff has produced on record (Exhibit-E) a document alleged to be an acknowledgment of the liability by the defendant, it does not bear the signature of the defendant and it cannot be said that the defendant has ever admitted the liability. Thus, material produced on record does not prove that the defendant owed to M & M a sum of Rs.46,24,580.31 or any other sum at all. 9. For these reasons, the defendant is granted unconditional leave to defend the suit. The suit is transferred to commercial causes and to be tried as a regular suit. (D.G. KARNIK, J.)