Case Note & Summary
The petitioner, Gaurav Singhania, proprietor of Gaurav Industries, filed a summary suit (Summary Suit No.15/2010) against Matrix Agri Science Pvt. Ltd. and its directors for recovery of Rs.7,35,450/- for goods sold and supplied. The suit was preceded by a notice dated 25/09/2009, to which the respondents' advocate replied, admitting liability to the extent of Rs.6,70,140/- and requesting return of a post-dated cheque of Rs.7,07,880/-. The petitioner accepted the offer but the respondents did not fulfill the commitment, leading to the suit. The respondents filed an application for leave to defend under Order 37 Rule 3(5) CPC, which was allowed unconditionally by the learned 5th Joint Civil Judge, Senior Division, Nagpur, vide order dated 22/02/2011. The petitioner challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India. The High Court considered whether the trial court was justified in granting unconditional leave to defend. The court noted that the respondents had raised triable issues, including a dispute regarding the quantum of liability and the return of the cheque. The court held that the admission in the advocate's reply did not constitute a clear and unequivocal admission of liability sufficient to deny leave to defend. The court further observed that the trial court had exercised its discretion judiciously and that the order granting unconditional leave to defend did not warrant interference. Accordingly, the writ petition was dismissed, and the rule was discharged with no order as to costs.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 3(5) CPC - Unconditional Leave - The petitioner filed a summary suit for recovery of Rs.7,35,450/- for goods sold and supplied. The respondents sought leave to defend, which was granted unconditionally by the trial court. The High Court upheld the order, holding that the respondents had raised triable issues and that the admission in the advocate's reply did not amount to a clear admission of liability sufficient to deny leave. (Paras 1-6)
B) Civil Procedure - Summary Suit - Admission of Liability - Effect on Leave to Defend - Order 37 Rule 3(5) CPC - The respondents' advocate's reply admitted liability to the extent of Rs.6,70,140/- and requested return of a post-dated cheque. However, the court found that the respondents had raised triable issues regarding the quantum and the cheque, and therefore unconditional leave to defend was appropriate. (Paras 3-6)
Issue of Consideration
Whether the trial court was justified in granting unconditional leave to defend to the respondents in a summary suit under Order 37 CPC, despite an alleged admission of liability in the advocate's reply.
Final Decision
The High Court dismissed the writ petition, upholding the order of the trial court granting unconditional leave to defend. The rule was discharged with no order as to costs.
Law Points
- Order 37 Rule 3(5) CPC
- unconditional leave to defend
- triable issues
- admission of liability
- summary suit
Case Details
2011 LawText (BOM) (07) 118
Writ Petition No.1346/2011
Shri A. V. Khare for petitioner, Shri P. M. Chandekar for respondents
Shri Gaurav Singhania, Proprietor, Gaurav Industries
Matrix Agri Science Pvt. Ltd. and others
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order granting unconditional leave to defend in a summary suit.
Remedy Sought
The petitioner sought to quash the order dated 22/02/2011 passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur, which granted unconditional leave to defend to the respondents.
Filing Reason
The petitioner was aggrieved by the grant of unconditional leave to defend to the respondents in Summary Suit No.15/2010, contending that the respondents had admitted liability in their advocate's reply and therefore were not entitled to unconditional leave.
Previous Decisions
The trial court allowed the respondents' application for unconditional leave to defend under Order 37 Rule 3(5) CPC vide order dated 22/02/2011.
Issues
Whether the trial court was justified in granting unconditional leave to defend to the respondents despite an alleged admission of liability in the advocate's reply.
Whether the order granting unconditional leave to defend warrants interference under Articles 226 and 227 of the Constitution of India.
Submissions/Arguments
The petitioner argued that the respondents had admitted liability in their advocate's reply and therefore were not entitled to unconditional leave to defend.
The respondents contended that they had raised triable issues and that the admission was not unequivocal, thus the trial court correctly granted unconditional leave.
Ratio Decidendi
The court held that the trial court had exercised its discretion judiciously in granting unconditional leave to defend, as the respondents had raised triable issues. The admission in the advocate's reply did not amount to a clear and unequivocal admission of liability sufficient to deny leave to defend. The order did not warrant interference under Articles 226 and 227 of the Constitution of India.
Judgment Excerpts
The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 22/02/2011 passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur, by which order the application filed by the respondents for unconditional leave to defend under Order 37 Rule 3 (5) of the Civil Procedure Code came to be allowed and resultantly unconditional leave to defend came to be granted to the respondents.
In the said suit the respondents upon being served with the summons, filed an application for leave to defend. The application makes a mention of the fact that the respondents have a good defence to the suit and therefore they are entitled to unconditional leave to defend.
Procedural History
The petitioner filed Summary Suit No.15/2010 for recovery of Rs.7,35,450/-. The respondents filed an application for leave to defend under Order 37 Rule 3(5) CPC. The trial court allowed the application and granted unconditional leave to defend vide order dated 22/02/2011. The petitioner challenged this order by filing Writ Petition No.1346/2011 under Articles 226 and 227 of the Constitution of India. The High Court dismissed the writ petition on 12/07/2011.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 37 Rule 3(5)
- Constitution of India: Articles 226, 227
