Indian Bank v Maharashtra State Co-operative Marketing Federation Ltd

• The Bank opened an irrevocable letter of credit for the Federation. In 1992 the Bank filed a summary suit under O.XXXVII in the Bombay High Court to recover about Rs.4.96 crore. The Federation had earlier sued the Bank and sought a stay of the summary suit under S.10. A single judge refused the stay and granted conditional leave to defend; a Division Bench held S.10 applied to summary suits and stayed the suit.

1. Whether the bar in S.10 on proceeding with the trial of a later suit applies to a summary suit under O.XXXVII before leave to defend is granted.

• S.10 and O.XXXVII must be construed harmoniously. In a summary suit the stage of determining the matter in issue arises only after the defendant obtains leave, so the trial begins only then. The court may proceed up to hearing the summons for judgment and pass judgment for the plaintiff if leave is not applied for or is refused, or its conditions are not complied with. The appeals were allowed and the single judge's order restored.

"Trial" in S.10 is not the whole proceeding from the plaint; in the context of O.XXXVII it begins with the grant of leave to defend.