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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10573 OF 2022

1 M/s. Ashok Commercial Enterprises

126, Free Press House,
Nariman Point, Mumbai – 400 021.

2 Ramesh Uttamchand Ramchandani

Adult, Indian inhabitant,
126, Free Press House,
Nariman Point, Mumbai – 400 021. ....Petitioners

V/S

Rajesh Jugraj Madhani

Adult, Indian inhabitant,
A Wing, 6th Floor, Universal Business Park,
Chandivali Farm Road, Off. Saki Vihar Road,
Andheri East, Mumbai – 400 072
Residing at Flat No.09, Plot No.2,
Ugam Building, 9th Road,
Behind Haveli Temple, J.V.P.D. Scheme,
Juhi, Vile Parle (West), Mumbai. ....Respondent
…

Mr. Darshit Jain a/w Ms. Neuty Thakkar a/w Ms. Parichehr Zaiwalla i/b
Mr. Tushar Goradia for Petitioners.
Mr. Anoshak Davar a/w Mr. Nirav Shah a/w Mr. Nishant Tanna i/b M/s. Little
& Co. for Respondent.
…

CORAM: SANDEEP V. MARNE, J.

RESERVED ON: 25 JANUARY 2023.
PRONOUNCED ON: 31 JANUARY 2023

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JUDGMENT:

1 Order dated August 11, 2021 passed by the City Civil and Sessions

Court, Mumbai, rejecting Petitioners/Plaintiffs’ application for summary

judgment is the subject matter of challenge in the present Petition.

2 Petitioners are the Plaintiffs in commercial suit instituted for recovery

of money with interest against defendant, who is Respondent herein. The

case pleaded in plaint is that Plaintiff No.1, who is in business of trading in

property and financing, was approached by Defendant for financial

assistance in the form of loan of Rs.50,00,000/-. Plaintiffs paid

Rs.50,00,000/- to the Defendant by RTGS on May 27, 2015. It is alleged

that Defendant has executed a Bill of Exchange in favour of the Petitioners/

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’.

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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 ‘Code’), before the City Civil Court at Bombay on

or about August 30, 2019. The same however came to be registered as

Commercial Suit No.134 of 2019. Defendant made an unsuccessful attempt

to seek dismissal of the suit for non-compliance of pre-institution mediation

enumerated under section 12A of the Commercial Courts Act, 2015 and its

Notice of Motion came to be dismissed by order dated March 10, 2021. In

the meantime, Plaintiffs filed Summons for Judgment possibly under an

impression that the suit was treated as a summary suit under the provisions

of Order XXXVII of the Code. After noticing the provisions of Order XIII A of

the Code, leave was granted to Plaintiffs to register the Chamber Summons

as application for Summary Judgment. In the meantime, Defendant was

permitted to file Written Statement by an order dated March 10, 2001, in

which it denied various contentions raised in the Plaint in addition to raising

the issue of limitation.

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4 When the application for Summary Judgment No.2 of the 2019 was

pressed before the City Civil Court, the same has been rejected by order

dated August 11, 2021 holding that there are triable issues involved in the

suit. That order is subject matter of challenge in the present Petition.

5 Appearing for the Petitioners/Plaintiffs Mr. Jain the learned Counsel

would submit that the suit is based on Bills of Exchange dated May, 27

2015 and October 30, 2015, execution of which is not under dispute. He

would submit that the only defence raised by Defendant while replying

Plaintiffs’ notice on August 9, 2019 was about non-possession of money-

lenders license, which is not a requirement for suit based on Bills of

Exchange as per the settled position of law. He would submit that the

admission of the claim can be inferred on the basis Defendant’s letter dated

August 5, 2015, issuance of post-dated cheques and non-denial of receipt

of Rs.50,00,000/- by Defendant. Mr. Jain would take me through the

provisions of second Proviso to sub-rule 5 of Rule 3 of Order XXXVII of the

Code in support of his contention that since there is an admission of claim

on the part of the Defendant, the Court could not have granted leave to

defend without the condition of deposit of the admitted amount. He would

rely upon the judgment of the Apex Court in IDBI Trustee-ship Services

Limited vs. Hubtown Ltd. (2017) 1 SCC 568 laying down broad principles

on interpretation of provisions of Order XXXVII Rule 3 of the Code. Mr. Jain

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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 filed

as Summary Suit and averments made in paragraphs 14 and 18 of the

Plaint leaves no matter of doubt that what was originally filed was a

Summary Suit. He would further submit that Summary Suit was otherwise

not maintainable in so far as prayer for payment of interest is concerned as

the Bills of Exchange did not provide for payment of interest.

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7 Mr. Davar would further contend that the suit is hopelessly barred by

limitation. The suit is premised on Bill of Exchange dated May 27, 2015,

alleged admission of claim vide letter dated August 5, 2015 and cheques

bearing dates October 30, 2015, the same presented on or about August

30, 2019 is thus clearly barred by limitation. Even if the date of dishonor of

cheques is to be taken into consideration for computation of limitation, the

dishonor took place on November 2, 2015, thereby throwing the suit out of

limitation. The notice dated June 28, 2019 issued after lapse of 4 years

would not revive the time barred claim of the Plaintiffs.

8 Mr. Davar fairly concedes that the provisions of Maharashtra Money-

Lending (Regulation) Act, 2014 would not apply to suit based on Bill of

Exchange. He however submits that the defence of Defendant is slightly

different, viz. about misrepresentation about possession of valid money

lenders licence at the time of lending money and subsequent promise of

writing off loan by plaintiff after defendant flagging the issue of non-

possession of such a license. He would submit that Plaintiffs’ reliance on

their own books of accounts cannot be construed as an admission on the

part of the Defendant who never confirmed the same.

9 In rejoinder, Mr. Jain would dispute the contentions of Mr. Davar that

the date of demand reflected in Bills of Exchange would constitute starting

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point of limitation. In this regard he would rely upon the judgment of this

Court in Bank of India vs. Lafans India Export Private Limited, (1994) 1

Bom.C.R 419. He would also rely upon the judgment of this Court Madhya

Pradesh Industrial Development Corporation Ltd. Vs. Mumbai District

Central Co-operative Bank Ltd., AIR 2005 Bom 318, in support of his

contention that issue of limitation is irrelevant while deciding summary suits.

He would also rely upon the judgment of Delhi High Court Su-Kam Power

Systems Ltd. vs. Mr. Kunwer Sachdev & Anr., 2019 SCC Online Del

10764 in support of his contention that the Commercial Courts Act, 2015

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

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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/Plaintiffs are pressing their claim under the provisions of Order

XXXVI of the Code. However, as the submissions of the rival parties

progressed it became apparent that Plaintiffs’ claim is required to be

considered under the provisions of Order XIII-A of the Code. To achive

more clarity, it would be profitable to make reference to the order passed by

the City Civil Court on November 22, 2019 when Unregistered Summons for

Judgment was filed by Plaintiffs under the provisions of Order XXXVII of the

Code. The order reads thus:

“1 Heard Adv. Yasmin Tavaria for plaintiff. She has drawn my

attention to Order 13-A of Code of Civil Procedure that any party can
apply for summary judgment after summons has been served on the
defendant. The defendant has been duly served with writ of
summons. On perusal of roznama Adv. Asha Kanzariya i/b Adv.
Upadhyay appeared and filed undertaking to file vakalatnama on
behalf of defendant.
2 As per sub rule 2 of Order 13-A the stage for application for
summary judgment is provided that an applicant may apply for
summary judgment at any time after summons has been served on
defendant. The writ of summons is served on defendant. The
advocate of the defendant has filed an undertaking to file

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vakalatnama behalf of defendant. Hence leave granted to the plaintiff/

applicant to register summary judgment.”

12 Thus, as per order dated November 22, 2019, Plaintiffs’ application

came to be numbered as the one for Summary Judgment under the

provisions of Order XIII-A of the Code. Therefore, the provisions of Order

XXXVII of the Code would not be directly relevant while examining

correctness of the impugned order dated August 11, 2021 passed by the

City Civil Court. Though Mr Jain concedes to this position, he further adds

that the broad principles applicable for grant of leave to defend in summary

suits under Order XXXVII Rule 3 as enunciated in IDBI Trustee-ship

Services Limited vs. Hubtown Ltd. (supra) would continue to apply even

to Summary Judgment in commercial suits, as the provisions in Order XIII-A

merely broaden what was already provided for in Order XXXVII.

13 Now that a clarity is achieved about the exact provision of the Code

under which application was filed for Summary Judgment, the objection

raised by Mr. Davar about maintainability of Plaintiffs’ application under

Order XIII-A of the Code needs to be determined. 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

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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 do

so. Assuming that plaintiffs’ suit is initially filed as a summary suit under

Order XXXVII of the Code, thereby taking it out of ambit of provisions of

Order XIII-A of the Code, would it’s subsequent conversion as commercial

suit entail loss of both the rights viz. (i) to seek summary judgment under

Order XIII-A as well as (ii) pronouncement of judgment under Order XXXVII,

Rule 3 of the Code?. To paraphrase, would conversion of summary suit into

a commercial suit would put a Plaintiff in a disadvantageous position where

he loses right to seek pronouncement of judgment under Order XXXVII,

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Rule 3 of the Code as well as attracts the bar for seeking summary

judgment under sub rule 3 of Rule 1 of Order XIII A of the Code?

15. Through Mr. Dawar strenuously pressed his objection about non-

applicability of provisions of Order XIII-A to Plaintiff’s application, upon

being confronted with the above conundrum, he fairly concedes to the

position that a Plaintiff in summary suit cannot be put to a disadvantageous

position merely because his summary suit is converted into a commercial

suit. The objective behind incorporating provision of sub-rule 3 of Rule 1 of

Order XIII A of the Code is to prevent Plaintiff who once attempts

pronouncement of judgment under Order XXXVII Rule 3 of the Code and

upon conversion of his summary suit into commercial one, seeks to have

another bite at the cherry by seeking pronouncement of judgment under

Order XIII-A of the Code. The provisions of sub-rule 3 of Rule 1 of Order

XIII A cannot be interpreted to mean that Plaintiff in a summary suit which is

converted into commercial suit would loose both rights of pronouncement of

judgment under Order XXXVII Rule 3 of the Code as well as seeking

summary judgment under Order XIII A of the Code. Thus, the objection

about non-maintainability of application for Summary Judgment filed by the

Petitioners is repelled.

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16 Turning to the merits of the Order passed by the City Civil Court

rejecting application for Summary Judgment, Mr. Jain has made strenuous

efforts to demonstrate that Plaintiffs’ claim stands admitted and that there is

no probable defence available to Defendant. He has placed reliance on the

judgment of Single Judge of Delhi High Court Su-Kam Power Systems

Limited (supra) in which the object and purpose of introducing special

provision under Commercial Courts Act for 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
Commercial Courts Act, 2015.

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44. While deciding the test for summary judgment under Rule
24.2, House of Lords in Three Rivers District Council and Others vs.
Governor and Company of the Bank of England, [2003] 2 A.C.1,
reiterated the observation in Swain v Hillman, [2001] 1 All ER 91 that
the word ‘real' distinguishes ‘fanciful' prospects of success and it
directs the Court to examine whether there is a ‘realistic' as opposed
to a ‘fanciful' prospect of success. The House of Lords in Three
Rivers District Council (supra) also held that the Court while
considering the words ‘no real prospect' should look to see what will
happen at the trial and that if the case is so weak that it has no
reasonable prospect of success, it should be stopped before great
expenses are incurred. … … … ”
45. The Supreme Court of Canada in Robert Hryniak v. Fred
Mauldin, 2014 SCC OnLine Can SC 53 has also held that trial should
not be the default procedure. In the said case, which was an action
for civil fraud against the appellant and a corporate lawyer, who acted
for the appellant, the allegation was that the appellant, through that
company, had transferred more than US $10 million to an offshore
bank following which he claimed that the money had been stolen.
That money had initially been transferred to the appellant‟s company,
by the respondents therein, in respect of an investment opportunity.
48. In fact, the Federal Court Ottawa, Ontario in Louis Vuitton
Malletier S.A. v. Singga Enterprises (Canada) Inc., 2011 FC 776 and
High Court of Ireland in Abbey International Finance Ltd. v. Point
Ireland Helicopters Ltd. [2012] IEHC 374, have held that even
damages as well as unliquidated compensation can be awarded by
way of summary judgment. … … …”
49. Consequently, this Court is of the view that when a
summary judgment application allows the Court to find the necessary
facts and resolve the dispute, proceeding to trial would generally not
be proportionate, timely or cost effective. It bears reiteration that the
standard for fairness is not whether the procedure is as exhaustive as
a trial, but whether it gives the Court the confidence that it can find
the necessary facts and apply the relevant legal principles so as to
resolve the dispute as held in Robert Hryniak (supra).
50. In fact, the legislative intent behind introducing summary
judgment under 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.

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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 consideration. Defendant has raised defence of

limitation in its Written Statement. Majority of events leading to filing of the

suit have taken place in the year 2015. The first Bill of Exchange was

issued on May 27, 2015 with due date as June 26, 2015. The alleged

promise to repay the loan amount was made by Defendant in the form of

letter dated August 5, 2015. On the same day, Defendant issued two

cheques dated October 30, 2015, Rs.50,00,000/- towards principal amount

and Rs.2,33,333/- towards interest. The second Bill of Exchange was

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issued on October 30, 2015. In their notice dated June 28, 2019 Plaintiffs

have disclosed the date of dishonor of the cheques as November 2, 2015.

After these events of the year 2015, there is a long hiatus for about 4 years

and the claim for repayment of loan amount was raised by the Plaintiffs by

issuing notice dated June 28, 2019.

19 Mr. Davar has contended that the period of limitation would

commence either from ‘due date’ or atleast from the date of dishonor of

cheques. Mr. Jain would contend that the Bills of Exchange were payable

‘on demand’ and such demand was raised by Plaintiffs on June 28, 2019. In

this connection reliance is placed on judgment of this Court in Bank of

India (supra). Plaintiffs deposited the cheques and according to Mr. Davar

deposit of cheques would itself constitute ‘demand’. I do not wish to record

any findings on these contentions at this stage as doing that may affect the

mind of the City Civil Court while deciding the issue of limitation. Suffice it to

state at this juncture that a triable issue does exist atleast on the point of

limitation.

20 The City Civil Court has held requirement of possession of lending

license under section 13(1) the Maharashtra Money-Lending (Regulation)

Act 2014 as a triable issue. However, Mr. Davar has once again fairly

conceded that the since suit is based on Bills of Exchange, the same would

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not be hit by the provisions of section 13(1) of the Act of 2014. However,

there are other issues especially with regard to limitation, which in my view

would not put the claim of Plaintiffs as the one which is impossible of being

defended or zero prospect of Defendant successfully defending the same.

21 I am therefore of the view that the present case would not be covered

by eventuality of clause (a) of Rule 3 of Order XIII A of the Code where this

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;

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(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) to (f), the Court shall record its reasons for
making such order.

7. Conditional order. —(1) Where it appears to the Court that

it is possible that a claim or defence may succeed but it is
improbable that it will do so, the Court may make a conditional
order as set forth in Rule 6(1)(b) above.

(2) Where the Court makes a conditional order, it may:—

(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to
the claim or defence, as the case may be;
(iii) require a party, as the case may be, to give such
security or provide such surety for restitution of costs as
the Court deems fit and proper;
(iv) impose such other conditions, including providing
security for restitution of losses that any party is likely to
suffer during the pendency of the suit, as the Court may
deem fit in its discretion; and
(b) specify the consequences of the failure to comply with the
conditional order, including passing a judgment against the
party that have not complied with the conditional order.”

23 Thus again, sine qua non for making a conditional order under Order

XIII A, Rule 7 of the Code, is arrival of a conclusion by commercial court

that there is a possibility of the claim succeeding. Passing of conditional

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order again requires the same rigor of making out a case of zero possibility

of defendant raising any plausible defence. As urged by Mr. Jain, let me

now examine whether the Court could have made an order of conditional

leave to defend by taking into consideration the broad principles enunciated

by the Apex Court in Hubtown Ltd. (supra). The principles enunciated are

as under:

17. Accordingly, the principles stated in para 8 of Mechelec

case [Mechelec Engineers & Manufacturers v. Basic Equipment
Corpn., (1976) 4 SCC 687] will now stand superseded, given the
amendment of Order 37 Rule 3 and the binding decision of four
Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal
Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2. If the defendant raises triable 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 ordinarilyentitled 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.

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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. If the defendant has no substantial defence and/or raises no
genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be refused,
and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, leave to defend the suit, (even if
triable issues or a substantial defence is raised), shall not be granted
unless the amount so admitted to be due is deposited by the
defendant in court.

Thus in the event of the defendant satisfying the court that it has (i)

substantial defence, that is, a defence that is likely to succeed or (ii) fair or

reasonable defence, although not a positively good defence, plaintiff would

not be entitled for pronouncement of judgment and defendant would get a

unconditional leave to defend. Even for making a conditional order of leave

to defend any of the following eventualities must exist (i) defendant raises

triable issues, and a doubt is left with the trial Judge about the defendant's

good faith, or the genuineness of the triable issues (ii) defence is plausible

but improbable or (iii) where any part of the amount claimed by the plaintiff

is admitted by the defendant to be due from him. Applying above

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parameters to the present case, it cannot be said that the plaintiff made out

a case for pronouncement of judgment or even for a conditional order of

leave to defend. The defence of defendant inter alia on the point of

limitation is substantial one considering the fact that plaintiffs demanded the

amount by depositing cheques in November 2015. Plaintiffs contend that

the defendant requested for deferring the demand, which is required to be

proved by adducing evidence as the alleged request is not in the form of a

written communication. Thus, it is not possible to record a finding at this

juncture that there is certain possibility of success of claim of plaintiffs. To

arrive at such that finding, process of trial may have to be undertaken.

Therefore, even making of a conditional order under Rule 6(1)(b) of Order

XIII A of the Code is not warranted.

24 Resultantly, I do not find any error being committed by the City Civil

Court in passing the impugned order. The Petition is devoid of merits. It is

dismissed without any orders as to costs.

(SANDEEP V. MARNE, J.)

Digitally signed
by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2023.01.31
14:29:18 +0530

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