9911796707
TMI Blog1998 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Credit for a sum of ₹ 3,78,90,000 in favour of M/s. Shankar Rice Mills. Pursuant to that request the Bank opened an Irrevocable Letter of Credit on 6.6.1989. The agreed arrangement was that the documents drawn under the said Letter of Credit when tendered to the appellant Bank were to be forwarded to the Federation for their acceptance and thereafter the Bank had to make payments to M/s. Shankar Rice Mills on behalf of the Federation. On 6.2.1992 the Bank filed Summary Suit No. 500 of 1992 in the Bombay High Court under Order 37 of the Code against the Federation for obtaining a decree for ₹ 4,96,59,160 alleging that the said amount has become recoverable under the said Letter of Credit. The Bank took out summons for judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10 of the Code applies to a summary suit also. It also held that the summary suit filed by the Bank being a subsequently instituted suit filed by the Bank being a subsequently instituted suit was required to be stayed. It allowed both the appeals, set aside the orders passed by the learned Single Judge and stayed the summary suit till the disposal of the prior suit filed by the Federation. 6. The submission of the learned counsel for the appellant was that the view taken by the learned Single Judge was correct and Division Bench has committed an error of law in taking a contrary view. It was his contention that if Section 10 is made applicable to summary suit also the very object of making a separate provision for summary suits will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to 'proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit'. The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. 11. In our opinion, the Division Bench of the Bombay High Court was in error in taking a different view. It had relied upon the decision of this Court in Harish Chandra v. Triloki Singh , [1957]1SCR370 . That was a case arising under the Representation of People's Act and, therefore, it was not proper to apply the interpretation of word 'trial' in that case while interpreting Section 10 in the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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