Bombay High CourtMr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011Author:B.P. DharmadhikariBench:B.P. Dharmadhikari1




                                                                       
                                               
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR.




                                              
                WRIT PETITION  Nos. 5664 & 5364 OF 2010.
                                .........




                                    
                     
    WRIT PETITION No. 5664 OF 2010.

    M/s. Bhushan Steel Limited,
                    
    having its Registered Office at F-Block,
    1st Floor,  International Trade Tower
    Nehru Place, New Delhi - 110019
    through its Power of Attorney Holder
      

    Mr. S.K. Agrawal.                                   ....PETITIONER.
   



                                   VERSUS

    Mrs. Varsha A. Maheshwari,





    Proprietor of M/s. Parijat Enterprises
    through her Power of Attorney
    Mr. Ajay Maheshwari, Aged abut 42 years,
    Occupation - Business, r/o. A-2/41, 
    Vrindavan Apartment, New Hislop College,





    Civil Lines, Nagpur.                              ....RESPONDENT
                                                                    . 

                             ---------------------- 
                  Mr.  S. Dewani, Advocate for Petitioner.
      Mr.  Ajay Maheshwari, Power of Attorney Holder for Respondent.
                             -----------------------

                                     WITH




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    WRIT PETITION No. 5364 OF 2010.




                                                     
    Mrs. Varsha A. Maheshwari,
    Prop/o M/s. Parijat Enterprises




                                                    
    through her Power of Attorney
    Mr. Ajay Maheshwari, Aged abut 42 years,
    Occupation - Business, r/o. A-2/41, 
    Vrindavan Apartment, New Hislop College,
    Civil Lines, Nagpur.                             ....PETITIONER.




                                        
                         ig            VERSUS
                       
    1. M/s. Bhushan Steel Limited,
    having its Registered Office at F-Block,
    1st Floor,  International Trade Tower
    Nehru Place, New Delhi - 110019
      

    through its M.D. Shri Neeraj Singhal
   



    2. Mr. B.K. Sinha, G.M. Purchase Department,
    Bhushan Steel Limited, r/o. Bhushan Steel Ltd,
    at Narendrapur, P.O. Kusupanga, 





    Via Meramandali, District Dhenkanal, Orissa,
    New Address :
    To Mr. B.K. Sinha, General Manager,
    C/o. Ispat Industries Ltd.,
    6th Floor, "Nirmal" Building,





    Nariman Point, Mumbai - 400 021.
    Phone  022 6654222                                         ....RESPONDENTS
                                                                              . 

                              ---------------------- 
       Mr.  Ajay Maheshwari, Power of Attorney Holder for Petitioner.
               Mr.  S. Dewani, Advocate for Respondent No.1.
                              -----------------------




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                             CORAM :  B.P. DHARMADHIKARI,  J.Date of reserving the Judgment. -                  23.12.2010




                                                      
     Date of Pronouncement.          -                  05.01.2011

      

     JUDGEMENT.    




                                        
                       
                Challenge   in     both   these   Writ   Petitions   filed   by   rivalparties against eachother is to orders dated 30.09.2010 passed by the 

    4th  Joint   Civil   Judge,   Senior   Division,   Nagpur   in     Civil   Suit 
      

    No.70/2009.  The said suit is filed by the petitioner in Writ Petition 
   



    No.   5364/2010   as   Summary   Suit   for   recovery   of   amount   of   Rs.38,89,674.14 along with interest @ 18% jointly and severally against 





    the   defendants   therein.     The   dues   claimed   are   on   account   of 

    Magnetite   Powder     supplied   by   the   plaintiff   to   defendant   no.1 

    Company on the strength of purchase orders placed by the defendant 





    no.1 Company with the plaintiff.   The defendant no.2 is the General 

    Manager in purchase department of defendant no.1 Company.  By the 

    impugned   order   passed   below   Exh.16   the   trial   Court   has   granted 

    leave to defend under Sub-rule [5] of Rule 3 of Order 37 of Code of::: Downloaded on - 09/06/2013 16:44:20 :::4Civil Procedure Code, subject to defendants depositing a sum of Rs.34, 24,895/- in Court or then furnishing a bank guarantee for that 

    sum   within   a   period   of   one   month.       The   plaintiff   claims   in   Writ 




                                                         
    Petition that such a relief could not have been granted and a decree 

    for   amount   claimed   with   interest   ought   to   have   been   awarded.Defendant no.1 has filed Writ Petition No. 5664/2010, and very same 




                                           
    order   to   the   extent   it   calls   upon   defendant   no.1   to   deposit   the 
                         
    amount or to furnish Bank guarantee has been assailed in it claiming 
                        
    unconditional leave.   In that Writ Petition on 23.11.2010 this Court 

    extended   time   to   furnish   bank   guarantee   till   30.11.2010   and 
      

    thereafter     on   01.12.2010   the   petitioner   /defendant   no.1   has 
   



    accordingly furnished the Bank guarantee in that amount to the Trial 

    Court.2.           Plaintiff   through   her   Power   of   Attorney   Holder   while 

    assailing   the   order   in   writ   Petition   No.   5364/2010   has   invited 





    attention to the purchase orders to show that the quality of  powder 

    supplied   was   to   be   inspected   by   the   defendants   at   their   end   and 

    thereafter, payment was to be released within 7 days.   The material 

    if found inferior was to be returned within 7 days.     Various terms::: Downloaded on - 09/06/2013 16:44:20 :::5and conditions of the purchase order are indicated to urge that time 




                                                       
    has always been the essence of the contract.     In view   of this the 

    defence of defendants  that material supplied was  of inferior quality 




                                                      
    is, stated to be by way of after thought and for that purpose attention 

    is invited to the quantity of powder asked for in each purchase orders 

    and how it has steadily increased.    The details of bills and payments 




                                         
    released are also shown to this Court pointing out that except for the 
                        
    entries at Sr. Nos. 37 to 44 in chart there has been no delay at all and 
                       
    all payments have been released duly after inspection.   It is urged 

    that the payments released were not in accordance with supply or 
      

    could not be co-related and hence plaintiff was required to send a 
   



    special   representative   to   understand   the   accounts.     For   amounts 

    remaining  outstanding  e-mails   were  required to  be  forwarded,  but 





    then it did not receive any response.   When legal notice was sent on 

    03.03.2009,   immediately   within   two   hours   reply   notice   was 

    forwarded   by   defendants   taking   a   stand   that   the   material   was   of 





    inferior quality.3.           Attention has also been invited to the alleged third party 

    test reports and also  to the test reports conducted by the defendants::: Downloaded on - 09/06/2013 16:44:20 :::6as   alleged   to   show   how   plea   as   raised   about     inferior   quality   of 




                                                          
    material  do not match with the said story.  The  Attorney of plaintiff 

    contends  that first grievance of  poor quality has been made almost 




                                                         
    after nine months and then on the basis of the so called independent 

    test reports, pro-rata  deductions have been effected from all supplies.Out of total 77 trucks supplied, payments have been released for 55 




                                           
    trucks and there was never any complaint about remaining 22 trucks.The  establishment of defendants  is  stated to be  very big  and with 
                        
    facility for stringent quality check.   It is urged that in reply to the 

    legal notice for the first time on 03.03.2009 story of frequent break 
      

    downs in preceding one year and of alleged loss of several Crores has 
   



    been revealed & pressed into service.  The letter dated 28.02.2009 is 

    stated to be fabricated, as plaintiff got it on 26.03.2009 after receipt 





    of   the   e-mail     reply   of   defendants.     This   communication   dated 

    28.02.2009 is also urged to be exact replica of e-mail reply, except for 

    addition of figure of loss therein.     The test   certificates placed on 





    record by the defendants   and   test certificates filed by the plaintiff 

    are   also   pointed   with   contention   that   the     test     certificates   of 

    defendants  are  of  same  date   i.e. of  date  of  delivery.    The  learned 

    Attorney states that thus on the basis of immediate tests, no grievance::: Downloaded on - 09/06/2013 16:44:20 :::7was made about the inferior qualify and material was appropriated 




                                                        
    and used for production by the defendants. After the stock supplied 

    was appropriated, there is no question of its rejection.  It is also urged 




                                                       
    that when the  defendants allegedly  felt need of impartial/ 3rd party 

    test, why the plaintiff was not taken into confidence by arranging for 

    joint sampling.  It is urged that leave to defend has been sought for 




                                          
    without any material and service of letters upon plaintiff is alleged 
                        
    through   TCI   Express   Courier.       The   plaintiff   states   that   these 
                       
    documents are fabricated and when plaintiff sought information from 

    TCI Express Couriers, the said Courier has denied service of any such 
      

    letters on plaintiff.   Effort has also been made to show that records 
   



    have   been   interpolated   and   fabricated   by   inviting   attention   to   the 

    counter   submissions   filed   before   this   Court   vide   Stamp   No. 





    12432/2010.     The particulars used as Courier numbers/details are 

    stated  to be  also manipulated.     The effort of  defendant    to force 

    plaintiff to lift 300 M.T. Of alleged inferior quality material is also 





    stated to be again false in this background.  It is contended that in the 

    face   of   these   complaints   (alleged)   about   quality,   the   contract   was 

    never terminated and later supplies were accepted by the defendants.Plaintiff   states   that   denial   of   signature   of   Arvind   Srivatava   by::: Downloaded on - 09/06/2013 16:44:20 :::8defendant is false & an application moved by her underSection 340of Criminal Procedure Code is very much pending.4.            Shri   Dewani,   learned   Counsel   appearing   for   defendants 

    has   urged   that   the   plaint   as   filed   does   not   carry   verification   as 

    required by Order VI Rule 15(1)of Code of Civil Procedure.   It is 




                                            
    further urged that the suit also suffers from mis-joinder, in as much 
                          
    as   there   is   no   cause   or   contract   for   filing   such   suit   against   the 
                         
    defendant   no.2-   Shri   B.K.   Sinha,   General   Manager.     Specific 

    statement, that suit does not ask for any relief, not compatible withOrder 37 Rule 2 of Code of Civil Procedureis not contained in the 
   



    plaint, and there is also prayer to release interest @ 18%, which is 

    not supported by any  statute or by any document.  In view of these 





    defects, unconditional leave to defend ought to have been granted.  It 

    is urged that as per purchase order only Court at Cuttack in State of 

    Orissa   has   territorial   jurisdiction   and   hence,   the   suit   as   filed   at 





    Nagpur could not have been looked into.     The original documents 

    were not filed along with the plaint and were tendered on record on 

    last date behind the back of the defendants.  Hence, no cognizance of 

    those documents could have been taken and suit could not have been::: Downloaded on - 09/06/2013 16:44:20 :::9treated as summary suit.   It is urged that the application moved by 




                                                           
    the defendant no.1 for directing plaintiff to take back 300 M.T. of 

    powder is still pending and has not been decided.     Earlier orders 




                                                          
    passed by this Court on 22.07.2010 in Writ Petition No. 1534/2010 

    are pressed into service to show how   the aspect of jurisdiction and 

    mis-joinder of parties needed to be looked into first by the trial Court.The learned Counsel states that in the impugned order the trial Court 
                          
    has overlooked this direction and has decided all points together.5.            The balance confirmation letter on which the plaintiff has 
      

    placed   reliance   is   stated   to   be   false   and     attention   is   invited   to 
   



    affidavit of Shri Arvind Shrivastava, alleged to be signatory to that 

    balance   confirmation   disclosing   that   he   has   not   placed   any   such 





    signature.     The   defendant   has   also  filed   application   underSection 

    340of Criminal Procedure Code against the plaintiff and the same is 

    stated to be pending.     It is urged that the plaintiff cannot chose to 





    rely only upon one clause of the contract and entire contract needs to 

    be   construed   together.     Various   judgments   are   relied   upon     to 

    substantiate   all   these   aspects.     The   certificates   of   inferior   quality 

    produced on record and   also correspondence are stated to require::: Downloaded on - 09/06/2013 16:44:20 :::10trial and hence it is contended that grant of unconditional leave was 




                                                           
    essential.6.            The attorney for plaintiff in reply has argued that there is 

    no defect in verification and in any case that defect is curable.   He 

    further states that Mr. Sinha was the General Manager of defendant 




                                            
    no.1 Company and he has been rightly sued in that capacity.   It is 
                          
    further urged that the  defendant no.1 has got no establishment at 
                         
    Cuttack  and no  cause  of action  has  accrued at Cuttack,  hence  the 

    parties by their consent cannot confer jurisdiction on that Court.  It is 
      

    submited   that   the   purchase   orders   are   signed   by   defendant   no.2 
   



    General Manager Shri Sinha.  He has  done some wrong things and 

    he is also party to forgery of letters, hence he has been rightly  joined 





    as   defendant   no.2.     Attention   is   invited   to   plaint   to   urge   that   it 

    contains all necessary averments.   Original documents are stated to 

    be     filed   at   the   time   of   hearing   and   passing   of   the   orders   below 





    Exh.16   only   to   protect   them   and   it   is   further   argued   that   no 

    prejudice is caused to the defendants thereby.::: Downloaded on - 09/06/2013 16:44:20 :::117.            It   is   also   argued   that   the   defendant   has   not   made   any 




                                                             
    reference to eitherSale of Goods Actor to theContract Actand the 

    plaintiff  has  also relied upon  various  judgments  to show how said 




                                                            
    provisions   clinch   the   controversy   and   an   inference   of   deemed 

    acceptance of material supplied  needs to be drawn.8.            After   hearing   the   respective   parties,   I   find   it   first 
                           
    appropriate to consider the aspect of territorial jurisdiction.The Summary Suit is based upon purchase orders and the 

    said   orders   specifically   incorporate   a   condition   that   the   dispute 
      

    between   the   parties   shall   always   to   be   deemed   to   have   arisen   at 
   



    Cuttack and only Cuttack Court will have the jurisdiction to entertain 

    the claims.     The defendant no.1 has relied upon the judgments in 





    this respect to urge that the Court at Cuttack therefore would have 

    only   jurisdiction.     I   do   not   find   it   necessary   to   refer   to   all   those 

    rulings   cited   by     both   the   sides   as   judgment   of   Hon'ble   Supreme 





    Court   reported   at   1971   (1)   SCC   286  (Hakam   Singh   .vs.   M/s.Gammon   (India)   Ltd.)  clearly   covers   this   controversy.       The   said 

    judgment states that it is not open to the parties to confer by their 

    agreement, jurisdiction on a court which it does not possess.  When::: Downloaded on - 09/06/2013 16:44:20 :::12there   are   two   courts     possessing   jurisdiction   to   try   the   suit,   by 




                                                         
    agreement between the parties that dispute may be tried in one of 

    such courts and such agreement is not contrary to public policy.  Such 




                                                        
    an   agreement   therefore   does   not   contraveneSection   28of   the 

    Contract Act.  Here the defendant no.1 has got its registered Office at 

    New Delhi and plant at Narendrapur, Meramandli, District Dhenkanal 




                                          
    in   Orissa    State.     There   is   nothing   on   record   to   show   that   the 
                         
    defendant no.1 has got any establishment in Cuttack distict of Orissa.Though the defendant no.1 has urged that correspondence was made 

    from   Cuttack,   again   there   is   absolutely   nothing   to   support   this 
      

    contention.   In any case when plant is not in Cuttack  District and 
   



    Registered Officer is at New Delhi, it is apparent that for filing such a 

    suit against the defendant no.1 Company, Cuttack Court will never 





    have jurisdiction.  I, therefore, find that  the trial Court has correctly 

    appreciated   this   controversy   and   there   is   nothing   wrong   with   the 

    same.   The contention that this raises a disputed question of fact, is 





    again without any merit.9.             To   urge   that   suit   does   not   contain   statement   and 

    declaration as required by Order 37,  and to support the argument of::: Downloaded on - 09/06/2013 16:44:20 :::13mis-joinder, defendant no.1 has relied upon the judgment of learned 




                                                         
    Single Judge of this Court reported at 1999 [3] Mh.L.J. 64 (Mafatlal 

    Finance   Limited   Mumbai   .vrs.   Express   Industrial   Services   Pvt.   Ltd.Mumbai).   To   point   out   that   the   affidavit   in   support   of   plaint   is 

    defective,   reliance   is   being   placed   upon   the   judgment   reported   at 

    (2007)   1   SCC   341   (Baldev   Singh   .vrs.   Shinder   Pal   Singh   and 




                                          
    another).    Plaintiff   has   urged   that   these   defects   are   curable   and 
                         
    reliance is being  placed upon the judgment of Delhi High Court in 
                        
    case   of  Khemchand   and   others   .vrs.   State   and   others      in 

    F.A.O.No.241-43/2005 decided on 17.05.2010 by the learned Single 
      

    Judge.  Decision in case of  Kailash Singh .vrs. Hiralal Dey of Gauhati 
   



    High Court (learned Single Judge) decided on 30.03.1993 and the 

    judgment   of   Hon'ble   Apex   Court   in   case   of  Vidyawati   Gupta   and 





    others .vrs. Bhakti Hari Nayak and others   dated 03.02.2006 where 

    the Hon'ble Apex Court has found that  amendment to Order VI Rule 

    15   being procedural in nature, is directory and non-compliance with 





    it does not automatically render the plaint nonest are also pressed 

    into   service..       View   of   Calcutta   High   Court   to   the   contrary   was 

    therefore,   set   aside     by   the   Apex   Court.   The   judgment   of   Hon'ble 

    Apex   Court   in   Baldev   Singh   .vrs.   Shinder   Pal   Singh   and   another::: Downloaded on - 09/06/2013 16:44:20 :::14(supra) reveals that a factual averment made cannot be both, true to 




                                                         
    the knowledge and belief of deponent.   When the plaint as filed is 

    perused, in this respect, after prayer clause it is directly supported by 




                                                        
    affirmation   as   required   by   Order   VI   Rule   15[4]of   Code   of   Civil 

    Procedure.   Between prayer clause and this affirmation, verification 

    as   contemplated   by   Order   VI   Rule   15[c]   is   missing.     During 




                                          
    arguments it became clear that the representative for plaintiff did not 
                         
    understand this position.  But, then the affirmation filed is only with 
                        
    intention   to   support   the  statement   of   facts   made   in   plaint.     The 

    affirmation   does   not   specify   separately,   the   facts   true   to   personal 
      

    knowledge of the deponent and true to his belief. But these defects 
   



    are   only   procedural   in   nature   and   plaintiff   needs   to   be   given   an 

    opportunity   to   rectify   it.     Accordingly,   the   learned   Trial   Court   is 





    directed to give plaintiff before it, necessary reasonable opportunity 

    to rectify these defects.10.          At   this   stage,   I   find   it   appropriate   to   consider   the 

    contentions about form of summary suit.    Mafatlal Finance Limited 

    Mumbai .vrs. Express Industrial Services Pvt. Ltd. Mumbai (supra)  is 

    the judgment of learned Single Judge of this Court which holds that::: Downloaded on - 09/06/2013 16:44:20 :::15when claim for interest made in summary suit is not based on any 




                                                        
    agreement or any enactment, suit cannot be entertained as summary 

    suit   and   hence   unconditional   leave   to   defend   was   given   to   that 




                                                       
    defendant.  The observations at the end of paragraph no.4 show that 

    the plaintiff has to aver in plaint that no relief not falling within the 

    ambit of Order 37 Rule 2 is claimed by him, the learned Single Judge 




                                          
    found that the claim for interest in that suit was not based on any 
                         
    agreement and  not supported by any enactment.  It is further found 
                        
    that contention of plaintiff there, that provisions ofInterest Actbring 

    the   claim   made   therein   within   the   four   corners   of   Order   37  was 
      

    matter of investigation.   The learned Single Judge has relied upon 
   



    Division  Bench judgment reported     at M/s Randerian & Singh vs. 

    Indian   Overseas   Bank   and   later   Full   Bench   of   this   Court   has   not 





    followed this view. As the plaintiff has not touched this aspect at all & 

    as   defendant   1   has   not   pointed   out   the   Full   Bench   view,   I   am 

    reproducing   essential   observations   therein.   Said   Full   Bench   also 





    refers to two other Division Bench views which have bearing on the 

    issue.::: Downloaded on - 09/06/2013 16:44:20 :::1611.     In AIR 2004 Bom 186 "SICOM Ltd. v. Prashant S. Tanna" ,   




                                                          
    ( Full Bench )  controversy was :-"2. The earlier Full Bench on 25th November, 2003, 




                                                         
               framed,   for   convenience,   the   following   four  
               questions of law:-(i) Whether the provisions ofOrder XXIII, Rule 1 of  




                                          
               the Code of Civil Procedure, 1908 can be invoked  
                       
               while exercising powers underOrder XXXVII of the  
               Code of Civil Procedureand deciding a summons for  
                      
               judgment/application   for   leave   to   defend   a  
               summary suit instituted under Order XXXVII, Rule  
               1(2) thereof?(ii) Whether third option of abandoning a part of  
   



               the   claim   in   a   summary   suit   is   available   to   a 
               plaintiff   at   the   hearing   of   the   summons   for  
               judgment   or   the   options   set   out   in   two   Division 





               Bench judgments of this Court in M/s. Randerian 
               and Singh v. Indian Overseas Bank and Hydraulic  
               and General Engineering v. UCO Bank (1998 (1) LJ793) are exhaustive?(iii) Whether the Division Bench decision inAjcon  
               Capital Markets Limited v. Maya Rasayan Limitedgranting   a   third   option   as   aforesaid   is   in   accord::: Downloaded on - 09/06/2013 16:44:20 :::17with   the   summary   procedure   prescribed   byOrder  
               XXXVII of Code of Civil Procedure?(iv)   When   at   the   hearing   of   a   summons   for  
               judgment, the Court finds that a part of the claim in  




                                                           
               the summary suit, falls outside the scope ofOrder  
               XXXVII of the Code of Civil Procedure, 1908, what  
               are the options available to the plaintiff and what  




                                           
               powers can the Court exercise?"And the Hon'ble  Full Bench of this Court has held :--"12. In other words, a distinction must be drawn  
      


              between   the   sustainability   of   a   claim   and   the  
   



              maintainability   of   the   action   as   a   summary   suit.  
              The   negation   of   the   former   does   not   entail   the  
              negation   of   the   latter.   A   suit   can   be   said   to   fall  





              outside the ambit of Order XXXVII only if the relief  
              claimed therein is based on an action the nature of  
              which  does not fall  within  the classes  specified  in 





              Order XXXVII, Rule 1(2). A relief cannot be said to  
              fall   outside   the   ambit   of   Order   XXXVII,   Rule   2  
              merely because the quantum thereof is excessive, so 
              long   as   the   nature   of   the   relief   falls   within   the  
              clauses specified in Order XXXVII, Rule 1(2).::: Downloaded on - 09/06/2013 16:44:20 :::1813.   If   the   quantum   of   the   claim   in   suit   is   not  
      sustainable it is but a factor to be considered by the  




                                                 
      Judge while deciding and passing an order on, the  
      summons for judgment. The tests for the exercise of  




                                                
      jurisdiction while passing an order on a summons  
      for judgment have been settled in a plethora of cases  
      including of the Apex Court. In this reference, we are  




                                  
      not concerned with the same.14. We will now assume that when a part of the  
               
      claim is not warranted by a statutory provision or  
      by the contractual  document on which the suit is  
              
      based,   the   suit   must   be   one   which   cannot   be 
      accepted as a summary suit as held in Randerian's  
      

      case. Even so, we are also unable to agree with the  
      ratio in Randerian's case that in such an eventuality  
   



      only one of two consequences must follow viz. either  
      to grant unconditional leave to defend or to permit  





      the plaintiff to withdraw the summons for judgment 
      with   leave   to   file   a   fresh   summons   for   judgment  
      after amending the plaint. Nor are we able to agree  
      with the further ratio that "Recording of a statement  





      to give up or accept reduced interest is not sufficient.21.  We  are  also  in  respectful   agreement  with  the  
      judgment inAjcon's case which holds that in such a  
       case   there   are   not   merely  two
                                              options   as   held   in   
      Randerian's case. We are unable to see any purpose::: Downloaded on - 09/06/2013 16:44:20 :::19in driving a plaintiff to first withdraw the summons  
      or judgment, thereafter amend his plaint and finally  




                                                 
      take   out   a   fresh   summons   for   judgment.   Such   a  
      course   serves   no   useful   purpose   whatsoever.   The  




                                                
      same result can be achieved by the plaintiff merely  
      making   a   statement   at   the   bar.   To   amend   the  
      plaint,   the   plaintiff   would   be   required   under   the  




                                  
      rules to take out a chamber summons which itself  
      would take a few years to be decided. Thereafter, the  
               
      plaintiff would necessarily have to go through the  
      procedure   of   taking   not   a   fresh   summons   for 
              
      judgment.   Such   a   cumbersome   course   is   not  
      mandated by any of the provisionsof the C.P.C. The 
      

      defendant   cannot   possibly   be   prejudiced   if   the  
      plaintiff   is   not   made   to   suffer   such   a   labourious,  
   



      time-consuming   and   cumbersome   procedure.   Mr.  
      Zaiwalla   was   unable   to   indicate   any   reason   why 





      such a course should be adopted except stating that  
      if it were not so it would encourage plaintiffs to take  
      a chance by making unsustainable claims in the first 
      instance.   The   reasoning   does   not   appeal   to   us   as  





      justifying a conclusion in law contrary to the true  
      construction of Order XXXVII."::: Downloaded on - 09/06/2013 16:44:20 :::20It   is   also   held   that   said   Court   can   grant   unconditional   leave   to 




                                                            
    defendant for some part of claim and conditional leave for remaining 

    part.   However, the Full Bench judgment no where expressly states 




                                                           
    and does not notice the view of the learned Single Judge reported at 

    Mafatlal   Finance   Limited   Mumbai   .vrs.   Express   Industrial   Services 

    Pvt. Ltd. Mumbai (supra). Conclusions of Hon'ble Full Bench are :-"28. In the circumstances, we summarise the answer 
                        
                 to the reference as follows:(1) The judgments in M/s. Randerian and Singh v.Indian Overseas Bank and Hydraulic and General  
      

                 Engineering   v.   UCO   Bank   (1998)   1   LJ   793   are  
                 overruled.   The   suit   would   be   maintainable   as   a  
   



                 summary suit if it falls within one of the classes of  
                 suits enumerated in Order XXXVII, Rule 1(2) even if 





                 the claim made therein is not properly quantified or  
                 is in excess of what the plaintiff is entitled to.
                 (2) In a summary suit filed underOrder XXXVII of  





                 the   C.P.C.   the   plaintiff   is  entitled   at  any   time  to 
                 abandon or give up a part of the claim unilaterially.  
                 This, the plaintiff may do by making a statement to  
                 be recorded by the Court and without the necessity  
                 of the plaintiff making a formal application for the  
                 same by withdrawing the summons for judgment,::: Downloaded on - 09/06/2013 16:44:20 :::21amending   the   plaint   and   thereafter   taking   out   a  
              fresh summons for judgment or otherwise.(3) At the hearing of the summons for judgment, it  
              will be open to the Court to pass a decree for a part  




                                                      
              of   the   claim   and   grant   unconditional   leave   to  
              defend the suit in respect of rest of the claim.(4) At the hearing of the summons for judgment, it  




                                        
              is open to the Court to grant conditional leave to  
              defend   in   respect   of   a   part   of   the   claim   and  
                      
              unconditional   leave   to   defend   for   the   remaining  
              part of the claim. In such an order it would follow  
                     
              that in the event of the Defendant failing to comply 
              with the condition, he would suffer the consequences  
      

              mentioned in Order XXXVII qua only that part of  
              the claim for which conditional leave to defend has  
   



              been granted and not in respect of that part of the  
              claim   for   which   unconditional   leave   has   been  





              granted."12.        Thus, merely because demand for interest is not supported 





    either by the document or by the law, Suit here does not cease to be a 

    summary suit. But then the plaintiff has not made any request for 

    amendment either before the Trial Court or before this Court and has 

    not expressed readiness and willingness to abandon any part of the::: Downloaded on - 09/06/2013 16:44:20 :::22claim.  Moreover, as already pointed out above, plaint as filed seeks 




                                                       
    joint   and   several   relief   against   defendant   no.1   Company   and 

    defendant  no.2  Shri   Sinha.    Shri  Sinha   is   stated  to  be   its   General 




                                                      
    Manager.  When purchase orders are placed by company and contract 

    is with Company, it is clear that there cannot be any other contract or 

    independent   contract   with   Shri   Sinha,   General   Manager.     On   the 




                                         
    strength of the contract, the relief in summary suit could have been 
                        
    asked for only against defendant no.1 Company. Even if Shri Sinha is 
                       
    treated as General Manager, then also relief will have to be against 

    the Company only. However, prayer clause in plaint expressly seeks a 
      

    joint and several decree against both the defendants.  If the decree is 
   



    envisaged against only Company, it cannot be viewed as joint and 

    several.  The representative for plaintiff and defendant no.1 have not 





    raised any specific contentions about this nature of relief claimed.  It 

    is important to note that defendant no.1 alone has filed Writ Petition 

    No.5664/2010  and  defendant  no.2  Shri  Sinha   has   not  approached 





    this Court in the matter.13.          The defendant no.1 has relied upon judgment of learned 

    Single   Judge   of   Calcutta   High   Court   reported   at   AIR   1974   Cal.6::: Downloaded on - 09/06/2013 16:44:20 :::23(Madan Mohan Sureka .vrs. Bhavani Cinema and others) where view 




                                                        
    taken   is,   only   person   whose   name   appears   in   Hundi   can   be   sued 

    under Order 37 Rule 2.  The Hundi there was by the Firm and one of 




                                                       
    its partners was joined as party defendant though his name did not 

    figure   in   Hundi.     Learned   Single   Judge   found   that   whether   such 

    person was or was not a partner of the Firm, is a question   which 




                                          
    required investigation and therefore, granted unconditional leave to 
                         
    defend.  Here though position of defendant no.2 as General Manager 
                        
    of defendant no.1 Company is not in dispute, the prayer made for 

    joint   and   several   decree   creates   an   impression   that   Shri   Sinha   is 
      

    sought to be made responsible personally.  If defendant no.2 is to be 
   



    made responsible in his official capacity as General Manager, decree 

    could   have   been   asked   only   against   defendant   no.1   Company   and 





    there was no need to seek joint and several decree against both.   The 

    addition of defendant no.2 and relief sought against him, therefore, 

    shows that the suit as filed is not squarely covered by Order 37 Rule 2 





    of Civil Procedure Code.14.          If any claim for interest was to be given up or any other 

    amendment in plaint was to be prayed, the request for same could::: Downloaded on - 09/06/2013 16:44:20 :::24have   been   made   to   the   trial   Court   before   it   passed   the   impugned 




                                                          
    order.   In any case that request could have been made to this Court 

    when matters were  heard on 21.12.2010 to 23.12.2010.  There is no 




                                                         
    such request by the plaintiff.  As I have found that grant of decree in 

    summary suit against defendant no.2 Shri Sinha, is not possible, it is 

    not necessary for this court to proceed to appreciate the grievance of 




                                           
    plaintiff in the light ofSection 55of the Contract Act and provisions 
                         
    ofSections 41and42of the Sale of Goods Act.  That consideration 
                        
    would   have   been   relevant   only   in   case   of   entire   grievance   in   Suit 

    falling under provisions of Order 37.  Various judgments are cited by 
      

    the   plaintiff   through   her   authorized   Attorney   to   substantiate   that 
   



    contention.  I, have only mentioned those judgments for the purpose 

    of record.  Those judgments are -(1)          Caltex [India] Ltd. .vrs. Bhagwan Devi Marodia
                 (By Hon'ble Apex Court reported at 
                 AIR 1969 SC 405)





    (2)          Superintending Engineer .vrs. Patibandla Radhkrishna
                 Murthy of Andhra Pradesh High Court reported 
                 at 1996 [3] ALT 1137.(3)          Shah Mohanlal Manilal .vrs. Firm Running in the 
                 Name and Style of Dhirubhau Bavajibhai by Gujarat 
                 High Court, reported at AIR 1962 Guj. 56.::: Downloaded on - 09/06/2013 16:44:20 :::25(4)          Lohmann Rausher Gmbh .vrs. Medisphere Marketing 




                                                          
                 Pvt. Ltd. by Delhi High Court reported at 
                 117 [2004] DLT 95




                                                         
                 Consideration   of   these   judgments   relied   upon   by   the 

    plaintiff   is   not   essential   at   this   stage   because   of   finding   already 

    reached above and also to avoid any prejudice to cause/defence of 




                                           
    defendant no. 2 Shri Sinha. .15.          Defendant no.1 has relied upon judgment reported at AIR 

    1993 SC 352 (R.N. Gosain .vrs. Yashpal Dhir)  to urge that plaintiff 
      

    cannot be allowed to approbate or reprobate.  However, I do not find 
   



    any approbation or reprobation by plaintiff  on record at-least against 

    the defendant no.1.  Defendant no.1 has also relied upon the Division 





    Bench judgment of this Court reported at 2007 [3] Mh.L.J. 8 (Ravi 

    Prakash Khemka and another .vrs. Bank of India and others), wherein 

    Division Bench of this Court found that when defence raised was not 





    a   moonshine,   defendant   was   entitled   to   unconditional   leave   to 

    defend.   (1998) 5 SCC 354 (Sunil Enterprises and another .vrs. SBI 

    Commercial and  International Bank Ltd.) is the judgment of Hon'ble 

    Apex Court which follows the earlier judgment reported at AIR 1977::: Downloaded on - 09/06/2013 16:44:20 :::26SC 577 (Mechelec Engineers & Manufacturers .vrs. Basic Equipment 




                                                          
    Corp.).   The learned Single Judge of this Court in 2010 [4] Mh.L.J. 

    294 (Harilal and Co., Mumbai .vrs. Gammon India Ltd. Mumbai) has 




                                                         
    followed this judgment of Hon'ble Apex Court.16.          The defence of defendant no.1 that material supplied to it 




                                           
    was   of   inferior   quality   now   needs   to   be   looked   into.     While 
                         
    considering this defence at this stage it is necessary to remember that 
                        
    joint and several decree is asked for against defendants no.1 and 2 

    together. Defendant no.2 with conditional leave to defend, has   not 
      

    filed any proceeding against the impugned order before this Court.Purchase   orders   clearly   show   that   quality   of   material   was   to     be 

    inspected by the  defendant no.1 at it's site at MeraMundali.   Each 





    supply was to be accompanied by test certificate and accordingly it is 

    not   in   dispute   that   supply   made   by   the   plaintiff   satisfied   these 

    requirements.     The   first   grievance   authentically   made   by   the 





    defendant no.1 about inferior quality of supply is 03.03.2009.  There 

    is   dispute   between   the   parties   about   the   earlier   letter   dated 

    28.02.2009 written in this respect by the defendant no.1 to plaintiff.According to the plaintiff that letter is received after e-mail reply to::: Downloaded on - 09/06/2013 16:44:20 :::27notice dated 03.03.2009.  Perusal of this reply dated 28.02.2009 and 




                                                          
    reply to legal notice dated 03.03.2009 does not reveal that there is 

    much difference between the two.   The supplies have been effected 




                                                         
    by the plaintiff from 24.11.2007 till 09.06.2008 and that was without 

    any protest. First  supply order was for 50 M.T. Of magnetite powder.Second was for 100 M.T., third one as for 200 M.T., fourth one was 




                                           
    for 400 M.T., 5th  one was for 500 M.T., while last one was of 1700 
                         
    M.T.  The details of compliance is also placed on record by showing 
                        
    break   up   of   each   supply   with   bill   number,   bill   amount,   date   of 

    payment   etc.     In   reply   to   legal   notice   sent   by   the   defendant   no.1 
      

    under  signature  of  defendant  no.2,  defence  taken   is  supplies   were 
   



    accepted   on   the   strength   of   test   reports   given   by   the   plaintiff.Because of the mal-functioning in their factory, defendant no.1 was 





    advised   to   check   quality   of     Magnetite   Powder   and   hence 

    incorrectness of test reports given by the plaintiff came to light.   This 

    reply does not give any details date wise in this respect.   3 samples 





    are stated to be tested and reply further shows acceptance of total bill 

    amount,   as   also   total   outstanding   amount.     Amount   of   Rs.18,10,280/- is then deducted on account of poor quality and balance 

    of   Rs.   16,17,615/-   is   adjusted   against   loss.     Though   in   alleged::: Downloaded on - 09/06/2013 16:44:20 :::28communication   dated   28.02.2009   these   losses   are   stated   to   be 




                                                         
    approximately 20 Crores, E-mail reply notice  dated 3/3/2009 does 

    not show any adjustment or definite quantification of claim towards 




                                                        
    damages.  The test reports of defendant no.1 showing less percentage 

    of   Magnetite   and   dated   12.08.2008,   20.08.2008,   01.08.2008   and 

    11.09.2008. When test on quality were  agreed at end of defendants, 




                                          
    acceptance & use of material and then  story of malfunctioning for 
                         
    fairly   long   period     all   prima   facie   appear   doubtful   and   lacking 
                        
    bonafides. Deduction from all supplies on the basis of 3 such quality 

    checks   or   third   party   checks   also   creates   some   element   of   doubt.However,   this   can   not   be   finally   concluded   here   in   present   facts 
   



    against defendant 2.17.          In this situation, I find that the conditional leave to defend 

    granted   by   the   trial   Court   to   defendant   no.1   [petitioner     in   Writ 

    Petition No. 5664 of 2010] does not call for any interference.   The 





    said Court has looked into the necessary aspects and objections to its 

    jurisdiction  about mis-joinder and also about the alleged supply of 

    inferior quality of Magnetite Powder.  I do not find any jurisdictional 

    error or perversity   in that approach, in so far as the challenge by::: Downloaded on - 09/06/2013 16:44:20 :::29defendant   no.1   is   concerned.       The   defendant   no.1   has   already 




                                                      
    furnished   Bank   guarantee   as   directed   by   the   trial   Court   and   in 

    present   circumstances,   the   said   direction   cannot   be   viewed   as 




                                                     
    uncalled for.   I do not find any substance  in  the  effort of learned 

    counsel for defendant no.1 to urge that recourse to provisions [e] as 

    given in paragraph no.8 of the judgment of Hon'ble Apex Court   in 




                                         
    case of   Mechelec Engineers & Manufacturers .vrs. Basic Equipment 
                        
    Corp. (supra) is unjustified.18.         In   view   of   these   observations   and   findings,   both   the 
      

    Petitions are dismissed.  No costs.JUDGE

    Rgd.::: Downloaded on - 09/06/2013 16:44:20 :::