Judgment:
ORDER
R.J. Kochar, J.
1. The plaintiff has filed the present Summons for Judgment in the above suit for a decree for a sum of Rs. 2,49, 55, 804.98 as set out in the particulars of claim at Exh. G of the plaint. She has claimed interest on Rs. 1, 86, 85, 750/-.
2. The plaintiffs above suit is based on her claim that she had given the amounts to the defendant Nos. 1,2 and 3 in three different installments (1) Rs. 61,40,000/- (2) Rs. 81,50,000/- and (3) Rs. 26,00,000/-. The defendants No. 1 to 3 have passed receipts in token of having received the aforesaid amounts on different dates and the same are annexed to the plaint at Exhs-A, B and C respectively. It is her case that she had given these amounts to the defendant Nos. 1 to 3 for investment and they have invested, according to their own decision in their own name. It is her further case that on demand the defendants have not repaid the said amounts. A Notice was sent on her behalf on 24-10-1997 giving out all the details of the payments and receipts but the said amount was not repaid. However, a reply was sent on 28-11-1997 wherein the receipts of the aforesaid amounts were admitted. There were however denial of some other allegations with which we are not presently concerned. The reply sent on behalf of the defendants is in minute details. There is no denial of the receipt of the aforesaid amounts. The plaintiff has further relied on a letter dated 29-2-1998 sent by the defendants 1 and 2 to the plaintiff's advocate. In this letter also they have admitted that they have received the aforesaid amounts as a loan and the same being outstanding against them and the defendant No. 3, which is their private limited company. In this letter there is also unequivocal and clear admission of receipt of Rs. 1.75 crores from the plaintiff. The plaintiff has further averred that after sale of her flat for a higher sum and after purchase of another flat for a lower sum she has given the balance amounts to the defendants as a loan to them and that she is entitled to the payment of the said amount with interest at the late of 18% p.a.
3. The defendant Nos. 1, 2 and 3 have filed an affidavit in reply to the summons for judgment and the defendant No. 4 has also filed his own reply. The defendants have stated that they were only acting as agent of the plaintiff. It is further stated by the defendants that there was no agreement for repayments of the said amount and that there was no further agreement to pay interest. It is further as usual submitted by the Ld. Counsel for the defendants that the present suit is not within the preview of Order 37, Rule 2 of C.P.C.
4. The defendants have not raised any triable issue in their affidavit in reply. It is to the contrary that they have admitted the receipt of the money as stated by the plaintiff and they have also further admitted that they did pass receipts acknowledging the amounts received by them as per the Exhibits-A, B and C to the plaint. They have also admitted the aforesaid receipts of the amount in their reply to the advocate's notice and other letters sent by them to the plaintiff's advocate. So we have a claim put forward by a gullible lady that she had given a loan to the defendant Nos. 1, 2 and 3 to the tune of Rs. 1, 86,85,960/- which she is entitled to receive from them. They have merely raised a point that there was no agreement to pay interest. I was shocked to read one of their pleas that there was no agreement even to repay the said amount received by them. And it is also not their case that they had received that said amounts from the plaintiff as a donation not to be returned and therefore they were not liable to repay the same at all. Their pleas are totally dishonest and unbelievable. I am inclined to accept the submission of Shri Lad on behalf of the plaintiff that in fact the plaintiff was deceived by the defendant Nos. 1 and 2. It is very unfortunate that the defendants No. 1 is a Chartered Accountant while defendant No. 2 is his wife and defendant No. 3 is a private limited company of which the defendant No. 1 is a Director, who have engaged into such as act which partakes the character of clear deception. The defendants have not denied and they could not have denied the receipt of the said amount which was paid by the plaintiff to the defendant Nos. 1, 2 and 3. In my opinion therefore, these defendants have absolutely no case or defence of any nature and, therefore, they cannot be granted any leave to defend. They appear to have entered their appearance merely to protract the suit and to harass the gullible plaintiff lady. From their affidavit in reply their dishonesty is lurking from every corner. No one can say that though he has received the amount as a loan there was no agreement to repay the loan and that there was no agreement to pay interest. The concept of loans carries with itself interest.
5. There is no denial of the transactions between the plaintiff and the defendants. Whatever denials are there they are for the sake of denials and according to me they are dishonest denials. The affidavit itself is totally self-contradictory. At one stage they have denied the receipts and subsequently the defendants have clearly and unequivocally admitted the receipts of the said amounts. The defendants have tried to sell some sort of story which cannot be believed at all. I don't have to set out in what manner they have deal with the plaint as all the three receipts passed by them acknowledging the different amounts received by them have been clearly admitted in paragraph 3 of the affidavit in reply. Their only defence is that the plaintiff had requested them to invest that money in some other companies or the banks to get her for maximum benefits and for the purpose of tax planning. There was no question of investing that amount in their own company i.e. defendant No. 3.
6. The plaintiff has also filed a rejoinder wherein she has repeated her case and has refuted whatever is in the affidavit, in reply by the defendants. She has stated that she was a gullible lady nothing knowing of the investment and tax planning. She had given the aforesaid amounts as loan to the defendant Nos. 1, 2 and 3 who are introduced her by a common time and finally she says that she has been deceived by the defendant Nos. 1 and 2.
7. In the present case however, the point which requires to be considered is that where there is no agreement to pay interest whether interest could be rewarded by this Court in a Summary suit. It is only on this point I am inclined to grant a conditional leave to defendant Nos. 1, 2 and 3 to the extent of interest only and a decree in favour of the plaintiff for the whole admitted amount.
8. Having considered the facts of the case whether aforestated course can be adopted is the question. Before I answer the question let us have a fresh look, at the Order 37, Rule 2 of the C.P.C. as applicable to this Court.
'(2) In any case in which summons is in the prescribed form ( viz. Form No. 4 in Appendix B), the defendant shall not defend the suit, unless he enters an appearance and obtains leave from the Court or a Judge as hereinafter provided so to defend; and in default of his entering an appearance and of his obtaining such leave to defend the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified (if any) up to the date of the decree, and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf, and such decree may be executed forthwith.'
(emphasis is given by me)
From the above provisions it is crystal clear that the plaintiff is entitled for any sum not exceeding the sum mentioned in the summons. It is therefore, further clear that a decree can be passed in favour of the plaintiff for a sum lesser than the sum claimed in the suit. There is therefore, no bar on this Court not to pass a decree for a lesser amount than claimed, if from the record itself it can be ascertained that the plaintiff is entitled to a decree for the lesser amount than prayed for and such a decree can be passed even at the stage of hearing of summons for Judgment.
It cannot be disputed that Order 37 of the Civil Procedure Code, contemplates expeditious and just orders by way of summary proceedings, Order 37, Rules 3(3)(4) read as under:
'(3) The defendant may at any time within ten days from the service of such summons for judgment by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as the Judge appear just.
(4) At the hearing of such summons for judgment if (a) the defendant hasnot applied for leave to defend or if such application has been madeand is refused, the plaintiff shall be entitled to judgment forthwith,or if (b) the defendant be permitted to defend as to the whole or anypart of the claim the Judge shall direct that on failure to completethe security (if any) or to carry out such other direction as the Judgemay have given within the time limited in the order, the plaintiff shallbe entitled to judgment forthwith.'
(emphasis is given by me)
It is beyond any manner of doubt that the defendants must disclose suchfacts as may be deemed sufficient to entitle them to defend. And therefore,the Court is to consider to grant or refuse to grant up conditional leave or togrant conditional leave to defend on 'such terms as the Judge appear just.' Ifin fact there is no positive defence disclosed for any part of the claim, say, theprincipal amount, the defendant can be refused to grant up conditional leaveand he can be subjected to just terms or conditions by the Court. He can bepermitted to defend the whole or any part of the claim. It is therefore, clearthat leave to defend can be refused for a part of the claim. The plaintiff, insuch circumstances can be granted relief to that extent and he cannot beasked to wait till the whole suit is decided when he is justly entitled to a decree for a least the part of the claim.
No doubt Order 37 is a self contained Code in itself, but such a summary procedure is purposely provided to give expeditious relief to a plaintiff whose claim is genuine and bona fide and is reasonably ascertained or is so ascertainable. Though the provisions appear to be stringent they cannot be interpreted to totally strangulate even a genuine and a bona fide plaintiff for even a slight, innocent and innocuous variation in his claim or pleadings to throw his case in the dark room of the High Court meant for the long causes/ commercial causes suits. Even a stringent procedural provision will have to yield to the interest of justice which is the primary consideration of the Law Courts. And no rule or procedure can curtail that power of the Courts. It cannot be ignored that even under the stringent procedural provisions (both the Central or the Bombay amendments) it is the mandate that the order must be just. And to pass just orders or to subject the parties to just terms, it is implicit even in the stringent rules availability or existence of elbow-room or lee-way or some space for play. It cannot be said that the provisions of Order 37 of the Civil Procedure Code are screw-tight and that there is no room for the Court or Judge to make any movement.
9. In the light of the above legal position 1 do not find any disclosure of such facts from the affidavits of the defendant Nos. 1, 2 and 3 as could be deemed sufficient to entitle them to defend the suit. On the contrary they have in no uncertain terms admitted the receipts of the amounts from the plaintiff and their only defence is that there was no agreement to repay the said amounts to her. A triable issue regarding interest is raised to say that there was no contract to pay interest. In the light of the law discussed above and in the facts of the case before me there is no bar for me to pass a decree in favour of the plaintiff for the admitted receipts of the amounts by the defendants 1, 2 and 3. The issue of interest, however, can be finally tried. For the trial of the issue of interest, the plaintiff cannot be asked to wait for a decade or so to decree her suit for the admitted amounts. Such an order will not be a just order at all. The defendant No. 4 has, however, denied any receipt of the amounts. He is therefore, entitled to up conditional leave to defend the suit. As far as the amount of Rs. 17,95,750.00 is concerned the facts will require a further enquiry. There is no dispute about the receipt of the amount and drawing of over draft facility by the defendants 1, 2 and 3. There are, however, connected facts set out by both the parties which will need a little deeper enquiry, though prima facie I do not find any merits in the case of the defendant Nos. 1, 2 and 3. They can be shown a little mercy by granting them a conditional leave on their depositing the said amount of Rs. 17,95,750.00 in this Court. On their failure to do so the plaintiff will be at liberty to apply for decree for that amount only. I, therefore pass the following order:
(i) The suit is decreed and the Summons for Judgment is made absoluteto the extent of Rs. 1,68,90,000/-
(ii) The defendant Nos. 1, 2 and 3 are granted a conditional leave to defend the suit on their depositing a sum of Rs. 17,95,750/- within 12 weeks from today, failing which the plaintiff will be at liberty to pray for a decree against them for that amount only.
(iii) The Prothonotary and Senior Master is directed in invest the aforesaid amount of deposit in any nationalised Bank, initially for a period of three years to be renewed from time to time thereafter.
(iv) Advocate for the plaintiff shall pursue the investment of the amount.
(v) The defendant Nos. 1, 2 and 3 are granted up conditional leave to defend the suit only to the extent of interest.
(vi) As far as defendant No. 4 is concerned he is granted up conditional leave to defend.
(vii) The defendants shall file their written statement within eight weeks from today.
(viii) The parties shall complete discovery and inspection of the documents within eight weeks thereafter and shall file their affidavits of documents within four weeks thereafter.
(ix) The suit is transferred to the list of Commercial Causes.
(x) Prothonotary to act on an ordinary copy of this Order duly authenticated by the Chamber Registrar of this Court.
Certified copy of the decree and this order, expedited.