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APS

JUDICIAL ACADEMY
CM 10 SERIES
CASE MATERIAL IN 10 MINUTES
INDIAN BANK Vs MAHARASTRA STATE CO-OP. MARKETING FEDERATION LTD. 1998 SC.

THE QUESTION INVOLVED


♦♦ The question involved in the present case is with respect to the meaning of the term “trial” of a civil suit
used under Section 10 Code of Civil Procedure, 1908.
♦♦ If the concept of “trial” under Section 10 is applicable only to a regular or ordinary suit, then will that be
applicable to a summary suit filed under Order 37 of CPC.
FACTS
♦♦ Briefly stated the Indian Bank filed a summary suit on 06.02.1992 against the Maharashtra State Co-op-
erative Marketing Federation Limited for recovery. The federation objected to the “trial” of the summary
suit on the ground that it has already instituted a suit for recovery against Indian Bank prior to the filing
of the summary suit.
♦♦ The Single Judge of the Bombay High Court held that the concept of the “trial” contained under Section
10 of the CPC applies only to regular civil suit and not to a summary suit under Order 37 CPC, and as such
the summary suit is not required to be stayed. The learned Judge further granted leave to the federation to
defend the suit conditionally upon its depositing certain sum of money in the court.
♦♦ An appeal before the division bench the High Court reversed the order passed by the Single Judge on the
ground that the word “trial” under Section 10 is used in the broader sense and thus will apply to the sum-
mary suit as well. Hence the case came before the Supreme Court. To decide the aforesaid controversy it
is important to understand the applicability of Section 10 CPC.
♦♦ Section 10 CPC bars court from proceeding with the “trial” of the suit, that does not mean that the any
other court do not have jurisdiction to entertain and deal with the later suit.
♦♦ Section 10 is a general provision applicable to all classes of cases whereas Order XXXVII applies for
making of quick relief in certain classes of suits.
♦♦ It provides the bar against the proceeding with the “trial” of the suit.
♦♦ The other provides for expeditious granting of relief. After harmoniously interpreting both the provisions
it can be stayed that under Order 37 the plaintiff is required to serve a copy of the plaint and summons in
the prescribed form to the defendant, who has to within 10 days of service of notice enter into appearance.
The defendant will then applies for leave to defend, which court may grant conditionally or the court may
decline to do so; in the case the leave is not granted or the defendant fails to the condition the plaintiff
becomes entitle to a judgment forthwith.
♦♦ As such the determination all the matter in issue will arise in a summary suit only if the defendant obtained
the leave to defend the “trial” in reality will begin only once leave is granted to the defendant. Thus the
court held that in summary suit the “trial” begin if the court grant leave to defendant to contest the suit.
♦♦ The court further held that the bar contained in Section 10 with respect to proceeding further with the
“trial”, that it do not appear the basic of interlocutory orders such as an order for consolidation of cases
or appointment of receiver or an injunction or attachment before judgment. Thus the order passed by the
division bench of the High Court was reversed and the order of the Hon’ble Judge is restored.
*Similar rule applies to a case of indigent person under Order 33 of CPC, wherein a suit shall be
deemed to be instituted only when the permission to suit as an indigent person is granted by the court.*

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