SJ148-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.148 OF 2009 IN SUMMARY SUIT NO.419 OF 2009 M/s.Motwani International .. Plaintiff Versus M/s.Raj International & Anr. .. Defendants Mr.O.P.Pandey i/b. Pandey & Co. for plaintiff CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd September 2010. P.C.: 1] Plaintiff has filed a suit for recovery of a sum of Rs.3,63,803 as per Annexure L to the plaint. Heard Mr.Pandey. Perused plaint along with annexures and affidavit in reply and rejoinder. 2] In para no.16 of the plaint this is what is stated:- “16. The plaintiff further states that the plaintiffs are filing the present suit as a summary suit under Order XXXVII of CPC for their legitimate claim in asmuch as the defendants have no defence in the SJ148-09 2 matter and there is no relief which does not fall within the ambit of Rule 2 of the said order is claimed herein.” 3] Order XXXVII of the CPC is clear inasmuch as summary procedure contemplated thereunder is to classes of suits. The classes of suits are indicated in Order XXXVII Rule 1(2)(a) and (b). 4] The present suit is not based on bills of exchange, hundis and promisory notes, nor is it stated that the plaintiffs seek only to recover a debt or liquidated amount or demand in money payable by the defendant with or without interest, based on a written contract or 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 on a guarantee. 5] Repeatedly, a query was raised to Mr.Pandey as to how this suit can be maintainable as a summary suit. All that has been argued is that the plaintiffs have paid a sum of Rs.2,35,200 by cheque in the bank account of defendant No.1 and that liability is undisputed. However, perusal of SJ148-09 3 the plaint particularly paras 4 to 9 thereof together with affidavit in reply makes it clear that the amount was accepted by the defendant, as part payment of the advance for an order to be placed with the third party for supply of materials as per the specification ordered by the plaintiff but the plaintiffs changed specifications later on. 6] This version is denied in the rejoinder and it is stated that the defendants have manipulated the figures in the document which is at page 44 to the affidavit in reply. It is stated that the document is forged. 7] In the light of these assertions of the plaintiffs and further bearing in mind that the defendants state that they have filed a suit in the Court at Madurai against the plaintiffs herein, which was decreed ex parte, triable issues are raised. In such circumstances, defendants are entitled to an unconditional leave to defend the suit. Leave is accordingly granted with usual direction regarding filing of written statement, discovery and inspection. (S.C.DHARMADHIKARI, J)