Case Note & Summary
The plaintiff, Sanjog Sadanand Parab, filed a summary suit under Order XXXVII of the Code of Civil Procedure, 1908, against the defendants, B.P. Gharda & Co. and its partners, for recovery of a security deposit of Rs.1,83,000 along with interest and costs. The plaintiff had deposited the amount as interest-free security for premises taken on leave and licence basis between September 1995 and February 1998. The defendants acknowledged the deposit by letter dated 31 March 1998. The plaintiff vacated the premises on 12 October 1999 and claimed that after adjusting Rs.30,000 towards licence fees for August to October 1999, the balance of Rs.1,53,000 was refundable. The plaintiff also paid electricity charges separately. Despite demands, the defendants failed to refund the balance. The defendants filed an affidavit in reply seeking unconditional leave to defend, contending that the suit was not maintainable as a summary suit because the claim was not for a liquidated amount and that there were disputes regarding the quantum. The court, after hearing arguments, held that the defendants had admitted the receipt of the security deposit and the fact of vacation. The court found that the defendants' defence did not raise any triable issue and was merely an attempt to delay the proceedings. Applying the settled principles for leave to defend in summary suits, the court concluded that the defence was sham and moonshine. Accordingly, the court allowed the summons for judgment and decreed the suit in favour of the plaintiff for Rs.1,53,000 with interest at 6% per annum from the date of the suit until realisation, along with costs.
Headnote
A) Civil Procedure - Summary Suit - Order XXXVII CPC - Leave to Defend - Security Deposit - The plaintiff filed a summary suit for recovery of security deposit paid under a leave and licence agreement. The defendants sought unconditional leave to defend. The court held that the defendants failed to raise any triable issue and that the defence was sham and moonshine. The court noted that the defendants had admitted the receipt of the security deposit and the fact that the plaintiff had vacated the premises. The court also noted that the defendants had not disputed the plaintiff's claim in their correspondence. Consequently, the court granted the plaintiff's summons for judgment and decreed the suit. (Paras 1-10) B) Civil Procedure - Summary Suit - Order XXXVII CPC - Triable Issue - The court reiterated the principles for granting leave to defend in summary suits. It held that if the defendant raises a triable issue, leave must be granted; if the defence is plausible but not strong, conditional leave may be granted; and if the defence is sham or moonshine, no leave should be granted and the plaintiff is entitled to judgment. Applying these principles, the court found that the defendants' defence was not bona fide and did not raise any triable issue. (Paras 5-9)
Issue of Consideration
Whether the defendants are entitled to unconditional leave to defend the summary suit for recovery of security deposit, or whether the plaintiff is entitled to a decree in terms of the summons for judgment.
Final Decision
Summons for Judgment is made absolute. The suit is decreed in favour of the plaintiff for Rs.1,53,000 with interest at 6% per annum from the date of the suit until realisation, along with costs.
Law Points
- Summary suit
- Order XXXVII CPC
- Leave to defend
- Security deposit
- Triable issue
- Admission of liability
