In a summary suit for recovery of money, the court held that since the defendant did not deny liability and no defence was filed, a decree was passed on the undisputed claim. The summons for judgment was disposed of as the suit decree superseded it.
Decree passed on the restricted claim of Rs.67,947/- as prayed; summons for judgment disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
Summary Suit No.1369 of 2004
with
Summons for Judgment No.130 of 2007
Shamji Roopa Patel (Gami) ..Plaintiff
vs.
The Director, Head Multimedia
Ltd. ..Defendant
Mr.Prashant K.Hegde for plaintiff.
None for defendant.
CORAM: S.C.DHARMADHIKARIJ.
16th July, 2007
P.C.
1. Mr.Hegde states that the defendants have been duly
served in as much as the chamber order was obtained after
the packet returned unserved and thereafter substituted
service is effected by newspaper publication on 22nd
December, 2005. Affidavit proving the same is filed on
26th September, 2006. From the affidavit I am satisfied
that the writ of summons has been duly served on the
defendants.
2. This is a summary suit and the claim is on the basis
that the defendants were supplied goods (stationery items)
at their establishment/office premises from November to
May 2001 worth Rs.1,22,712/- The goods have been duly
accepted and invoices as well without raising any protest.
In this behalf, my attention is invited by Mr.Hegde to
paras 2 to 4 of the plaint. Even after the demands were
made, the amounts were not paid and reliance is placed
upon the suit notice and acknowledgement. Mr.Hegde states
that part of the claim is beyond time and, therefore, the
same is restricted by the plaintiff only to Rs.67,947/-
3. The suit of the plaintiff is based upon the written
contract as evidenced by the invoices/bills and delivery
challans. There is also a demand made and letter/notice
issued, a copy of which is annexed at page 73 of the
plaint, is duly received by the defendant.
4. There is no denial of the liability by the defendants.
There is no dispute raised by filing the vakalatnama as
well. Thus, there is no defence to the claim in the suit.
The suit is maintainable as a summary suit and upon the
claim being restricted by the plaintiff in the manner set
out in the plaint, there is no bar of limitation as well.
The plaintiff has satisfied all ingredients of Order 37 of
Code of Civil Procedure. In such circumstances, this
Court is taking all the original documents on record
together with the affidavit proving service. There will
be a decree as prayed . Advocate’s costs to be computed
as per rules. The list of original documents along with
the original documents are taken on record and marked "X"
for identification.
5. In view of the above decree in the suit and for
failure of the defendants to appear and file vakalatnama
there is no warrant in passing any order on the summons
for judgment no.130 of 2007 which in any event does not
survive and as such disposed of.
(S.C.DHARMADHIKARI J.)
3 issues framed by the court
Whether pending the filing of a vakalatnama by the defendant, it is maintainable to pass a decree in a summary suit where there is no denial of liability.
Whether Order 37 of the Code of Civil Procedure is satisfied when the defendant has not raised any defence.
Whether the summons for judgment is maintainable when the suit in which it was issued has already been disposed of.
1 provisions across 1 enactments
S.C. DHARMADHIKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court