Jayanta Kumar Biswas, J. - (1.) The first defendant in the suit has taken out this application seeking review of my order dated March 31st, 2004 disposing of the plaintiff's application filed under chapter XIIIA of the original side Rules of this Court. That chapter deals with the summary procedure in suits to recover debts or liquidated demands or for immovable property.
(2.) The plaintiff filed the suit for enforcing its rights accrued to it in terms of letter of subrogation dated August 17th, 2001 whereby the second defendant (Haryana Power Generator Corporation Ltd. a Government of India enterprise) assigned all its rights against the first defendant to the plaintiff. The plaintiff prayed for a decree against the first defendant for Rs. 30,70,192/-. That amount had been paid by the plaintiff to the second defendant on account of its insurance claim. The second defendant made the claim for the damage caused to a generator rotor owned by it, while that was being transported from Hyderabad to Panipat by the first defendant in the capacity of a common carrier. The second defendant had sent the rotor to Hyderabad for repair by Bharat Heavy Electricals Ltd. In course of transit, on April 5th, 2000 the trailer carrying the repaired rotor slipped down the road, and as a result the repaired rotor was damaged. Alleging negligence on the part of the first defendant, the second defendant called it upon to pay a sum of Rs. 41,81,206/-. Since the amount at which the claim of the second defendant was finally settled by the plaintiff was not paid by the first defendant in spite of demand, the plaintiff instituted the suit on March 24th, 2003. In the pending suit the application was filed.
(3.) In the application the plaintiff stated that in its belief there was no defence to the claim, and hence it was entitled to get a final judgment for the amount claimed together with interest. According to provisions in Rule 5 of the chapter, the first defendant was entitled to show cause against the plaintiff's application. In its show-cause affidavit the first defendant was required to state its defence, if any, to the whole or to part only and if so to what part of the plaintiff's claim. It was also required to deal specifically with all matters of fact. In terms of provisions in Rule 6 of the chapter, in the absence of a good defence to the claim on its merits a judgment was to be pronounced after making an order refusing leave to defend. In view of provisions in Rule 9 leave to defend could have been given to the first defendant unconditionally or subject to terms regarding security, or time, or mode of trial.;