1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE SUMMONS FOR JUDGMENT NO.502 OF 2007 IN SUMMARY SUIT NO.2460 OF 2007 Akai Consumer Electronics (I) ..Plaintiffs Vs. Margaret Thomas ..Defendant Mr. Lalit Jain for the Plaintiff Mrs. P. Mani Bajpai i/b Vimla & Co. for the Defendant CORAM: A.P. BHANGALE, J. DATE : 6th MAY, 2010 P.C. 1. This summons for judgment is taken out on 22-11-2007 in Summary Suit No.2460 of 2007 under Order XXXVII of the Civil Procedure Code. 2. The case of the plaintiffs, briefly stated, is that, during October 2004 the plaintiffs, a duly incorporated company, sold, supplied and delivered electronic goods valued at Rs. 71,500/- under four different invoices which were received, acknowledged and utilised by the defendants. 2 The defendants failed and defaulted to pay the price of the goods delivered. 3. On on about 26-12-2005, the plaintiffs demanded the dues but the defendants failed to pay the same. 4. Summons for judgment taken out by the plaintiffs on 22-11-2007 is resisted on the ground that the suit is not maintainable as a summary suit under Order XXXVII of the Civil Procedure Code and that the plaintiffs have suppressed material facts from the Court. It is also contended that the suit is also false, frivolous and vexatious and that the plaintiffs have not come to this court with clean hands and is not entitled to any relief. It is also contended that the plaintiffs are guilty of suppression of facts. The detailed affidavit in reply has been filed alleging that the suit is false and frivolous and not maintainable as summary suit. The learned counsel for the defendants prayed for unconditional leave to defend the pleadings that there is a substantial relief. 5. Heard submissions at the bar. I have perused the averments in the plaint, annextures, affidavit in reply to 3 the summons for judgment and other affidavits on record. Regarding grant of conditional or unconditional leave legal position was stated in a decision of the Supreme Court in case of M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation {AIR 1977 SC 577} and more particularly the para 8 thereof. The para 8 of the said decision reads thus: “8. In Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p.253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the form of the following propositions (at p.253): “(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action 4 he may be able to establish a defence to the plaintiff’s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.”” 6. Considering the nature of the suit claim and rival contentions advanced at the bar and so also the ruling by the Supreme Court in M/s. Mechalec Engineers’ case (supra), I think the contentions in defence prima facie appear bona fide and cannot be overlooked. The defendants have raised contentions attacking the plaintiffs’ case on suppression of facts, fraudulent approach, challenge to jurisdiction etc.. In my view, the case of the defendants would fall in category (c) above as the 5 defendants may be able to substantiate their defence and may successfully resist the suit claim. Defence, if accepted, may go to root of the suit. Hence, in the facts and circumstances of the case, I pass the following order: O R D E R (a) The summons for judgment is rejected. (b) Conditional leave to defend is granted. The defendants shall co-operate for early hearing and disposal of the suit by filing written statement, latest within eight weeks. The trial be heard as expeditiously as possible and preferably within three months from the date of framing issues. (c) Liberty for the parties to have Commissioner appointed to record evidence. (d) The chamber summons stands disposed of accordingly. (A.P. BHANGALE, J.)