Case Note & Summary
The plaintiff, a money lender, filed a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 seeking recovery of Rs. 94,432.87 with interest based on an alleged promissory note dated 23rd March 2008 for Rs. 80,000 executed by the defendant. The plaintiff claimed that the defendant failed to repay the amount despite notice dated 24th November 2008. The defendant filed an affidavit in reply to the summons for judgment, raising several defences. The defendant contended that the summary suit procedure was not applicable as the transaction was governed by the Bombay Money Lenders Act, 1946, rendering the suit hit by its provisions. The defendant also denied executing any promissory note, alleged the document was forged, disputed her signature, denied receipt of any notice, and raised the plea of limitation. The main legal issue before the court was whether the defendant was entitled to unconditional leave to defend the suit. The court considered the precedent in Sha Damji Deraj v. Megraj Bhikumchand And Co., where it was held that if a suit is filed under Order XXXVII and the Bombay Money Lenders Act applies, unconditional leave must be granted to the defendant. The court distinguished an earlier order in Champalal Saaremal Jain v. Altaf Abbas Mukadam, noting that the issue of unconditional leave was not directly addressed there. Since the plaintiff admitted in the plaint that the Money Lenders Act applied, the court found that the defendant was entitled to unconditional leave on that ground alone. Additionally, the court examined the merits and found that the defendant had raised triable issues, including disputed signature, non-receipt of notice, and unexplained source of cash. The court granted unconditional leave to defend, directed the defendant to file a written statement within four weeks, and transferred the suit to the list of Commercial Causes. The summons for judgment was disposed of accordingly.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Code of Civil Procedure, 1908, Order XXXVII; Bombay Money Lenders Act, 1946 - The court held that if a summary suit is filed under Order XXXVII and the Bombay Money Lenders Act applies, unconditional leave to defend must be given to the defendant. Following Sha Damji Deraj v. Megraj Bhikumchand And Co., the court ruled that the provisions of the Money Lenders Act override the summary procedure, entitling the defendant to defend unconditionally (Paras 5-8). B) Civil Procedure - Summary Suit - Triable Issues - Code of Civil Procedure, 1908, Order XXXVII - The defendant raised triable issues including denial of signature on the promissory note, non-receipt of notice, and discrepancies in signatures. The court held that these disputed questions of fact warranted unconditional leave to defend (Para 9).
Issue of Consideration
Whether the defendant is entitled to unconditional leave to defend the summary suit in view of the applicability of the Bombay Money Lenders Act, 1946 and the existence of triable issues
Final Decision
The court granted unconditional leave to defend to the defendant, directed written statement to be filed within four weeks, and transferred suit to Commercial Causes list. Summons for Judgment disposed of accordingly.
Law Points
- If a suit is filed under Order XXXVII of Code of Civil Procedure and the Bombay Money Lenders Act
- 1946 applies
- unconditional leave to defend must be granted
- Summary suit procedure not applicable where Money Lenders Act provisions apply
- Triable issues including disputed signature and non-service of notice justify unconditional leave
