1. Sudin Dilip Talaulikar v. Polycap Wires Pvt. Ltd.
The Code of Civil Procedure, 1908 - Order XXXVII Rule 3 - The Negotiable Instruments Act, 1881 - Section 138 - Procedure for Summary Suit - Procedure for the Appearance of Defendant - The ultimate object of a summary suit is expeditious disposal of a commercial dispute.
In a summary suit, if the defendant discloses such facts of a prima facie fair and reasonable defence, the court may grant unconditional leave to defend. This naturally concerns the subjective satisfaction of the court on basis of the materials that may be placed before it. However, in an appropriate case, if the court is satisfied of a plausible or probable defence and which defence is not considered a sham or moonshine, but yet leaving certain doubts in the mind of the court, it may grant conditional leave to defend. In contradistinction to the earlier subjective satisfaction of the court, in the latter case there is an element of discretion vested in the court. Such discretion is not absolute but has to be judiciously exercised tempered with what is just and proper in the facts of a particular case. The ultimate object of a summary suit is expeditious disposal of a commercial dispute. The discretion vested in the court therefore requires it to maintain the delicate balance between the respective rights and contentions by not passing an order which may ultimately end up impeding the speedy resolution of the dispute. [Para 11]
Case Number : C.A. No. 5528 of 2019 15-07-2019
Petitioner's Advocate : Varun Singh
Bench : Hon'ble Mr. Justice Ashok Bhushan, Hon'ble Mr. Justice Navin Sinha
Judgment By : Hon'ble Mr. Justice Ashok Bhushan
2. Sir Sobha Singh and Sons Pvt. Ltd. v. Shashi Mohan Kapur (deceased) Through Legal Representative
The Code of Civil Procedure, 1908 - Order 20 Rules 6, 6A & 7; Order 21 Rules 11(2) & (3) and Order 23 Rule 3 - Contents of Decree - Preparation of Decree - Date of Decree - Written Application - Compromise of Suit.
Order 20 Rule 6 of the Code deals with contents of decree and provides that the decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses and particulars of claim, relief granted or any other determination made in the suit, amount of costs incurred in the suit, and by whom or out of what property and in what proportions, the cost to be paid. Rule 6A deals with the preparation of decree. It says that every endeavor shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. Rule 6A (2) of Order 20 of the Code says that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order 41 be treated as the decree but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. [Para 26]
The Code of Civil Procedure, 1908 - Order 20 Rule 6A (2) and Order 21 Rule 2 - Though Rule 6A (2) of Order 20 of the Code deals with the filing of the appeal without enclosing the copy of the decree along with the judgment and further provides the consequence of not drawing up the decree yet, the principle underlined in Rule 6A(2) can be made applicable also to filing of the execution application under Order 21 Rule 2 of the Code.
Order 20 Rule 7 deals with the date of decree. It says that the decree shall bear date the day on which the judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. Order 21 Rule 11(2) of the Code, which deals with the execution of the decree, provides that the decree holder is only required to give details of the judgment and the decree in the execution application along with other details [see clauses (a) to (j)]. [Para 29]
The Code of Civil Procedure, 1908 - Order 21 Rule 11 (3) - It is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree.
Similarly, Order 21 Rule 11(3) of the Code makes it clear that the Court "may" require the decree holder to produce a certified copy of the decree. This clearly indicates that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree. [Para 30]
The Code of Civil Procedure, 1908 - Order 21 Rules 10 and 11 (2) - As and when the decree holder files an application for execution of any decree, he is required to ensure compliance of three things. First, the written application filed under Order 21 Rules 10 and 11 (2) of the Code must be duly signed and verified by the applicant or any person, who is acquainted with the facts of the case, to the satisfaction of the Court; Second, the application must contain the details, which are specified in clauses (a) to (j) of Rule 11(2) of the Code, which include mentioning of the date of the judgment and the decree; and Third, filing of the certified copy of the decree, if the Court requires the decree holder to file it under Order 21 Rule 11(3) of the Code.
Case Number : C.A. No. 5534 of 2019 15-07-2019
Petitioner's Advocate : Aarthi Rajan
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheswari
Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre
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