LexSOUTHERN SALES & SERVICES & ORS. versus SAUERMILCH DESIGN & HANDELS GMBH
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[2008] 14 S.C.R. 130 ~ A SOUTHERN SALES & SERVICES & ORS. I v. SAUERMILCH DESIGN & HANDELS GMBH (Civil Appeal No. 6046 of 2008) B OCTOBER 3, 2008 [AL TAMAS KABIR AND MARKANDEY KAT JU, JJ] "i- Code of Civil Procedure, 1908: c Or 37, .r3(5), second proviso (as substituted by Act 104 of 1976) - Summary trial - Leave to defend the suit - Granted by High Court subject to deposit of 55% of the claim amount admitted by defendant - HELD: In view of the provisions of r 3 as substituted by 1976 amendment, High Court was within its ;urisdiction to grant conditional leave - There does not ap- D pear to be any error or irregularity in the discretion exercised by the High Court. \ The respondent filed a suit under Order 37 of the Code of Civil Procedure, 1908 against the defendant-ap- _ _, E pellant for recove..Y of Euro 757,885.42. The trial court granted unconditional leave to defend the suit. In the re- vision petition filed by the plaintiffs, the High Court held that the defendant raised a triable issue and the suit re- quired to be decided in a full-fledged trial; and that the defendant in its defence admitted certain amount as F claimed by the plaintiff. It, therefore, granted leave to de- ·\ fend the suit in respect of the claim of the plaintiff for Euro 3,20;967,57 subject to the condition that defendant would deposit .in the trial court 55% of the said ~mount. G In the instant appeal filed by the defendant, it was contended for the appellant that in relation to summary trial under Order 37 CPC when the court was satisfied that ;;.:.., a triable issue was raised in defence of the claim made by the plaintiff, unconditional leave ought to have been H 130 . SOUTHERN SALES & SERVICES & ORS. v. 131 SAUERMILCH DESIGN & HANDELS GMBH r~ granted to the defendant to contest the suit. For the plain- A tiff-respondent it was contended that in view of the provi- sions of Rule 3 of Order 37 CPC, as substituted by the CPC (Amendment) Act, 1976, the High Court was justified in imposing the condition for grant of leave to defend the suit, and there was no reason for the Supreme Court to B interfere with the discretion exercised by the High Court . . r< Dismissing the appeal, the Court HELD: 1.1 In view of the provisions of Rule 3 of Or- der 37 CPC, as substituted by the Code of Civil Proce- c dure (Amendment) Act, 1976, the earlier concept of grant- ing unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to deposit any amount as admitted before D I leave to defend the suitcan be granted. [para 17][138-E,F] I -J 1.2 In the instant case, the High Court has come to a finding thata certain portion of the claim made in the plaint has been duly admitted by the defendant-appellant and, accordingly, directed 55% thereof to be deposited as a E pre-condition for grant of leave to defend the suit. The question as to whether leave to defend a suit can be granted or not is within the jurisdiction and the discre- tionary powers of the High Court and it does not appear that such discretion has been exercised erroneously or F J with any irregularity. The judgment of the High Court does not warrant any interference since it has exercised its ju- risdiction under the second proviso to sub-rule (5) to Rule 3 of Order 37 of the Code. [para 15 and 17] [138-8,F,E] Santosh Kumar Vs. Bhai Moo/ Singh [1958] SCR 1211; G Milkhiram (India) Private Ltd. vs. Chamanlal Bros. AIR 1965 SC 1698; Mis. Meche/ec Engineers and Manufacturers Vs. Mis. Basic Equipment Corporation 1977(1 )SCR 1060 = 1976 (4) SCC 687; and The Managing Director (MIG) Hindustan H 132 SUPREME COURT REPORTS [2008] 14 S.C.R. A Aeronautics Ltd., Balanagar, Hyderabad vs. Ajit Prasad Tarway AIR 1973 SC 76 - cited. CASE LAW REFERENCE [1958] SCR 1211 cited para 8 B AIR 1965 SC 1698 cited para 9 1977 ( 1 ) SCR 1060 cited para 9 >- AIR 1973 SC 76 cited para 10 CIVILAPPELLATE JURISDICTION: .Civil Appeal No. 6046 C of 2008 From the final Judgment and Order dated 26.6.2008 of the High Court of Karnataka at Bangalore in C.R.P. No. 460 of 2005 D T. V. Ratnam for the Appellants. Neeraj Sharma, Vikram Dholakia, Roopali Singh and Archana Lakhodia (for M/s. Dua Associates) for the Respon- dent. E The Judgment of the Court was delivered by ALTAMAS ~BIR, J. 1. Leave granted. 2. This appeal,
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