JUDGMENT - A.V. SAVANT, J. :---On a motion made by Mr. Naik, the names of respondents Nos. 4 5 viz. the two Courts below are deleted. 2. This writ petition by the Bombay Mercantile Co-op. Bank Ltd., Bombay, demonstrates how the delay in disposal of cases can help a businessman to the prejudice of a Bank. The order impugned in this petition is the one dated 31st January, 1991 passed by Shri R.S. Dargode, the then Member of the Maharashtra State Co-operative Appellate Court, Bombay, in Appeal No.421 of 1990. Under the said Order, the learned Member allowed the appeal of the first three respondents (original opponents). In the result, the Order dt. 9th October, 1990 passed by the learned trial Judge of the Co-operative Court, Bombay, in Case No.C.C.I./1057 of 1990 granting conditional leave to defend on the said three respondents depositing a sum of Rs.75,00,000/- within one month, has been set aside. 3. The suit filed by the petitioner-Bank in the year 1990, is for recovery of a sum of Rs.1,12,34,267.95 as on 30th June 1990, together with compound interest at 16.5% p.a. from 01-07-1990. Pursuant to the admission of this petition, there was a stay of further proceedings in the pending dispute and that is how neither anything has been paid to the petitioner-Bank, nor has any amount been deposited in the trial Court. A few facts relevant for the disposal of this petition can be stated as under. 4. The petitioner is a Co-operative Bank. Respondent No.1 M/s. Akberali Sons is a partnership firm, in which respondents Nos. 2 3 are the partners. Respondents Nos. 2 3 became the members and shareholders of the petitioner-Bank in the year 1971. The firm-respondent No. 1 was registered in 1976 and the Firm also became a member and shareholder of the Bank in 1977. the first respondent Firm was doing the business of ship breaking and selling the scrap. On 29th April, 1987 vide Exh. "A", the first respondent wrote to the petitioner Bank requesting for an overdraft facility of Rs. 3.36 crores. By a latter dated 25th May, 1987, at Exh. "B", the petitioner-Bank informed the first respondent that the facility was sanctioned to the tune of Rs. 2,35,55,000 only subject to certain terms and conditions. By a letter at Exh. "A", the first respondent wrote to the petitioner Bank requesting for an overdraft facility of Rs. 3.36 crores. By a latter dated 25th May, 1987, at Exh. "B", the petitioner-Bank informed the first respondent that the facility was sanctioned to the tune of Rs. 2,35,55,000 only subject to certain terms and conditions. By a letter at Exh. "C" dated 6th June, 1987 the first respondent Firm accepted the terms and conditions mentioned in the letter issued by the petitioner-Bank on 25th May, 1987 at Exh. "B". On 12th June, 1987 vide Exh. "D", the Reserve Bank of India gave permission to the petitioner-Bank to sanction Rs. 2.35 crores to the first respondent. 5. On 27th June, 1987 the two promissory-notes in dispute viz. Exhs. "E" and "F", were executed. Exhibit "E" is a pro-note executed by the first respondent Firm for Rs 2,35,55,000, whereas Exhibit "F" is a pro-note executed by respondents Nos. 2 3 as partners and guarantors for the sum of Rs. 2,35,55,000/-. On 27th July, 1987, at the request of the first respondent, the petitioner issued a Pay Order of Rs. 2,91,00,786/- in favour of the Shipping Corporation of India Ltd. on behalf of the first respondent Firm. In fact, the period of overdraft facility was only 18 months and was, therefore, liable to expire in January, 1989. Though the ship "M.V. Ajanta", which was required to be broken and the scrap was to be sold, was hypothecated to the Bank, the first respondent indulged in selling the broken material and the scrap and the sale proceeds were not deposited with the petitioner-Bank though that was required under the contract between the parties. 6. On 1st March, 1989, therefore, by its letter at Exh. "M" the petitioner informed the first respondent that though a substantial amount was outstanding from the first respondent, the said proceeds of the scrap of the ship were not being deposited with the petitioner-Bank, which amounted to a serious violation of the terms of sanction and the Reserve Banks approval. Several letters of demand were sent by the petitioner to the first respondent. On 23-10-1989 vide Exh. "Q", the first respondent wrote to the petitioner-Bank that the balance would be paid in a phased manner--- (i) From sale proceeds of stock of the said vessel "M.V. Ajanta" -Rs. 30,00,000/-; (ii) An amount of approximately Rs. Several letters of demand were sent by the petitioner to the first respondent. On 23-10-1989 vide Exh. "Q", the first respondent wrote to the petitioner-Bank that the balance would be paid in a phased manner--- (i) From sale proceeds of stock of the said vessel "M.V. Ajanta" -Rs. 30,00,000/-; (ii) An amount of approximately Rs. 25,00,000/- from the sale of the property at Goa; (iii) Refund of Excise duty of approximately Rs.16,00,000/-. The first respondent unequivocally admitted its liability to pay the balance overdraft in a phased manner and on realising its duties from various sources. It was further mentioned in the said letter at Exh. "Q" that the first respondent was negotiating a purchase of another vessel for scrapping at Jamnagar, Gujarat, and hoped to earn approximately Rs. 38 lacs in the bargain, which would also be available for payment to the petitioner-Bank. Since, however, nothing was paid by the first respondent, the petitioner-Bank issued a legal notice at Exh. "R" on 31st March, 1990. No reply was filed by the first respondent or by respondents Nos. 2 3. 7. On 6th August, 1990 the present dispute has been filed by the petitioner-Bank against the first three respondents. There are categoric averments in paras 5, 6 and 7 that a contract was spelt out in view of the correspondence exchanged between the parties between 29th April, 1987 and 6th June, 1987 at Exhs. A, B C above. This would clearly show that the dispute was for recovery of a fixed amount of money in the nature of a debt arising out of a written contract. In Para 8 of the plaint, the petitioner-Bank has referred to two promissory-notes at Exhs. "E" and "F" executed on 27-6-1987 for the sum of Rs.2,35,55,000/-. Promissory notes were executed by respondents No.2 3 in their capacity as partners on behalf of the Firm and also in their individual capacity as guarantors. This would show that the dispute is for recovery of a debt upon promissory-notes. The entire correspondence that has been exchanged between the parties has been referred to in the dispute, including the letter at Exh. "Q" dated 23rd October, 1989 under which the first respondent admitted the liability and offered to pay in a phased manner by raising funds from different sources and by liquidating some of its assets. The entire correspondence that has been exchanged between the parties has been referred to in the dispute, including the letter at Exh. "Q" dated 23rd October, 1989 under which the first respondent admitted the liability and offered to pay in a phased manner by raising funds from different sources and by liquidating some of its assets. In Para 16 of the plaint, there is a specific averment that the dispute was filed as a summary suit under the provisions of Rule 77-F of the Maharashtra Co-operative Societies Rules, 1961. In the first place, it was a dispute for recovery of a debt upon the promissory notes viz. Exhs. "E" "F" and secondly, it was also a dispute for recovery of a fixed sum of money in the nature of a debt arising under a written contract, as spelt out in the correspondence exchanged between the parties at Exhs. "A" to "C". 8. At this stage, it will be relevant to reproduce Rule 77-F in its entirety :- "77-F. Summary procedure for deciding disputes.- (1) Subject to the provisions of sub-section (4) of section 94, the following disputes, if the disputant so desires, shall be decided in the summary manner prescribed under this rule, namely:- (a) any dispute for recovery of a debt upon promissory note, hundi, bill of exchange or bond, with interest whether agreed upon under such instrument or under the bye-laws; (b) any dispute for recovery of a fixed sum of money, in the nature of a debt, with or without interest, arising on a written contract, but other than penalty or on a guarantee; (c) any dispute for recovery or price of goods sold and delivered, where the rate, quality and quantity are admitted in writing; (d) any dispute for recovery of dues payable in respect of a tenament by a member of a housing society towards contribution for construction of the tenaments, in respect of repayment of any loan, interest on loan, ground rent, local authority taxes, sinking fund, water charges, electric charges, repairs, maintenances and upkeep charges or charges for other services rendered by the society and the interest of such arrears payable under a written agreement or the bye-laws or the tenancy regulations. (2) In such cases, the disputant shall, in addition to the normal averments in Form "P", make the following averments, namely :- (a) that the claim of the disputant is for recovery of liquidated sum of money only and no other relief beyond the scope of this rule is claimed in this dispute; (b) that the disputant believes that there is no valid or bona fide defence to his claim. (3) In such cases, the opponent shall not be entitled to defend the claim, unless he obtains leave from the Registrar or the Co-operative Court so to defend as hereinafter in this rule provided, and in default of his obtaining such leave or of his appearance and defence in pursuance of such leave, the allegations in the petition shall be deemed to be admitted, and the disputant shall be entitled to the award in his favour as prayed and for such sum for costs as may be awarded by the Registrar or the Court. (4) (i) Within ten days from the service of a notice calling upon the opponent to obtain leave from the Registrar or the Court, to appear and defend the claim, the opponent or such of the opponents as are interested in defending the claim shall apply to the Registrar or the Court, as the case may be, by an affidavit or a declaration for the leave, setting out the facts on which he relies and what triable issues are likely to arise. The opponent shall in such application disclose all the document supporting his contention and as far as possible attach copies of such documents which he considers important from his point of view. A copy of such application shall be served on the disputant and he shall have a right to file a rejoinder in the form of an affidavit or declaration and place before the deciding authority such material as in his opinion supports his contentions. (ii) The Registrar or the Court, on reading the affidavits and declarations and on hearing the parties and their pleadings and considering the documents relied on and produced by them, may pass an award or grant leave to defend to such of the opponents, unconditionally or upon such conditions, as the deciding authority may think fit under the circumstances and on facts of the case. The Registrar or the Court granting leave to defend shall also give directions and prescribe time limit for filing the written statement and fix the date for hearing. Leave may be granted to some and may be refused to other opponents. If leave is granted and not complied with by any opponents, the deciding authority may pass an award against him, as if he had not been granted leave. (iii) If the conditions on which leave to defend is granted and not complied with by any opponent, the Registrar or the Court may pass an award against him, as if he had not been granted leave. (iv) The Registrar or the Court may, for sufficient cause, excuse the delay in applying for leave to defend any case. (v) The Registrar or the Court may, under special circumstances, set aside the award, and if necessary stay or set aside execution, and may give leave to the opponent to appear and defend the dispute, if it seems reasonable to the deciding authority so to do, and on such terms as it thinks fit. 9. A perusal of the above Rule would show that Clauses (a) and (b) of sub-rule (1) of Rule 77-F would be squarely attracted in view of the specific averments in the plaint and the documents that were produced before the learned trial Judge. Clause (a) of sub-rule (2) of Rule 77-F requires that in order to be a summary dispute, there has to be an averment in the plaint that the dispute is for the recovery of a liquidated sum of money. Such averment is to be found in Para 16 of the plaint which reads as under :- "16. The Disputants submit that the Opponents have fraudulently disposed off the securities without crediting the sale proceeds with the Disputants. The entire claim of the Disputants is now unsecured. The Disputants have, therefore, filed this summary proceedings under the provisions of Rule 77-F of the Maharashtra Co-operative Societies Rules, 1961 for the recovery of the debts upon promissory note and on written documents. The claim of the Disputants in the present dispute is for recovery of liquidated sum of money only and no other relief beyond the scope of Rule 77-F of the Maharashtra Co-operative Societies Rules ,1961 is claimed in this dispute. The claim of the Disputants in the present dispute is for recovery of liquidated sum of money only and no other relief beyond the scope of Rule 77-F of the Maharashtra Co-operative Societies Rules ,1961 is claimed in this dispute. The Disputants believe that there is no valid or bona fide defence to their claim against the Opponents". Sub-rule (3) of Rule 77-F says that in such cases, the opponent shall not be entitled to defend the claim unless he obtains leave from the Registrar of the Co-operative Court to defend, in the manner laid down in the Rule. 10. Clause (1) of sub-rule (4) of Rule 77 requires that the opponent has to make an application within 10 days from the service of a notice to obtain leave from the Registrar of the Court, to appear and defend the claim, either by an affidavit or a declaration for the leave, setting out the facts on which he relies and what triable issues are likely to arise. The opponents in the dispute is also required to produce all the documents supporting his contentions and, as far as possible, attach copies of documents which he considers important from his point of view. This is a clear mandate of Rule 77-F(4)(1) quoted above. 11. Despite the above, all that the respondents did was to file a short application which, in my view, does not comply with the mandate of Rule 77-F(4)(1). No facts have been set out on which any triable issues can arise. Neither the facts nor triable issues have been set out in the Application at Exh. "V" dated 30th August, 1990. No documents have been disclosed in support of the contentions raised by the respondents, nor have copies been attached to the application falling under Rule 77-F(4). Beyond setting out some sham and bogus contentions, nothing has been said in the application so as to grant unconditional leave to defend. The petitioner filed its rejoinder at Exh. "W" reiterating its contentions and denied the sham and bogus pleas that were sought to be raised by the respondents. 12. The learned trial Judge by his Order dated 9th October, 1990 came to the conclusion that Rule 77-F was squarely attracted and the requirements of the said Rule were fully complied with. The petitioner filed its rejoinder at Exh. "W" reiterating its contentions and denied the sham and bogus pleas that were sought to be raised by the respondents. 12. The learned trial Judge by his Order dated 9th October, 1990 came to the conclusion that Rule 77-F was squarely attracted and the requirements of the said Rule were fully complied with. He referred to the averments in the plaint in the light of the requirements of Rule 77-F and came to the conclusion that there was no triable issues raised by the respondents, the pleas raised by the respondents being sham and bogus. The learned trial Judge came to the conclusion that there was no merit in the defence raised by the respondent. The claim of the Bank was to the tune of over a crore of rupees. The learned trial Judge granted leave to the respondents to defend on condition that they deposit Rs.75 lacs within one month without prejudice to their rights and also paying of costs of Rs. 500/- to the petitioner-Bank. 13. This well considered and reasoned order has been set aside by the learned Appellate Judge in a somewhat cursory manner, relying on two flimsy grounds. The first is that there was an overdraft facility on hypothecation of the ship and secondly that, there was a dispute regarding the respondents membership of the petitioner-Bank. A reference was also made to a Judgment of the learned Chief Justice M.C. Chagla, C.J.- delivered on 11th December, 1953 in C.R.A. No.536 of 1953, (Hirachand Parsram v. Lachmendas Porasram)1. In the result, the learned Appellate Judge allowed the Appeal on 31st January 1991 and granted unconditional leave to the respondents to file the written statement within three weeks. Mr. Deodhar for the respondents makes a statement that, accordingly, the written statement has been filed. Though the dispute was ordered to be disposed of expeditiously, pursuant to the stay granted by this Court, there is no progress in the trial Court. As a result, neither respondent No.1 has paid nor deposited any money in the Bank. 14. At the outset, I must refer to the Supreme Court decision in the case of (M/s. Mechalec Engineers Manufacturers v. M/s. Basic Equipment Corporation)2, reported in A.I.R. 1977, Supreme Court. Pg. 577. As a result, neither respondent No.1 has paid nor deposited any money in the Bank. 14. At the outset, I must refer to the Supreme Court decision in the case of (M/s. Mechalec Engineers Manufacturers v. M/s. Basic Equipment Corporation)2, reported in A.I.R. 1977, Supreme Court. Pg. 577. Dealing with the provisions of Order XXXVII, Rule 3 of the Code of Civil Procedure, the Supreme Court has laid down the principles that are to be followed for considering the question of leave to defend. If the defendant satisfies the Court that he has a good defence on the merits of the case he may be entitled to unconditional leave. If the defendant raises a triable issue indicating that he has a fair, bona fide and reasonable defence, the Court may grant him unconditional leave. If, however, the defendant has no defence or the defence set up is illusory, sham or practically moonshine, then ordinarily the plaintiff is entitled to leave to sign the judgment and the defendant is not entitled to leave to defend. This is clear from the observations in Para 8 of the Judgment at page 580 of the Report. I must also point out that relying upon this Judgment of the Supreme Court, I have taken a similar view in the case of (J.K Enterprise v. Prithviraj Ratanchand Mehta and another)3, reported in 1990, Maharashtra Law Journal, pg.1329, to which Mr. Naik has invited my attention. 15. I have heard Mr. Naik and Mr. Deodhar. Mr. Naik has contended that the suit is clearly a summary suit and the requirements of Rule 77-F have been fully complied with. My attention is invited to Clauses (a) and (b) of sub-rule (1) of Rule 77-F. As far as Clause (a) is concerned, Mr. Naik has invited my attention to the two promissory notes at Exhs. "E" and "F", both dated 27th June, 1987, which would clearly show that the dispute is for recovery of a debt due on promissory notes. As far as Clause (b) of sub-rule (1) of Rule 77-F is concerned, Mr. Naik relies upon the correspondence exchanged between the parties between 29th April, 1987 and 6th June, 1987 at Exhs. "A" "C", which shows that the dispute is in relation to a fixed sum of money in the nature of a debt arising under a written contract. As far as Clause (b) of sub-rule (1) of Rule 77-F is concerned, Mr. Naik relies upon the correspondence exchanged between the parties between 29th April, 1987 and 6th June, 1987 at Exhs. "A" "C", which shows that the dispute is in relation to a fixed sum of money in the nature of a debt arising under a written contract. The learned trial Judge was right in his conclusion that since the petitioner-Bank has abandoned its claim against the hypothecated goods, the claim was based clearly on the promissory notes and the written contract. Mr. Naik pointed out that since the scrap of the broken ship has already been sold and no part of the sale proceeds has been credited with the petitioner-Bank, the petitioner-Bank has no choice but to base its claim solely on the promissory notes and the written contract. In my view, the two grounds on which the learned Appellate Judge has allowed the Appeal are totally devoid of any merit. The suit is not based on a claim at the foot of the Account in respect of the overdraft facility. The dispute raised by the three respondents as to their membership of the petitioner-Bank is totally sham and bogus and is clearly mala fide. Prima facie, at this stage, the respondents have no answer whatsoever to their liability. This is clear from Exh. "Q" dated 23-10-1989 where all that they wanted was some accommodation to enable them to pay in a phased manner by liquidating their assets and raising funds from various sources. 16. Apart from the above, the learned Appellate Judge was not justified in placing reliance on the Judgment of the learned Chief Justice M.C. Chagla, C.J., dated 11th December, 1953 in C.R.A. No.536 of 1953. That was a case where the amount was due at the foot of the account. However, sitting in a Division Bench Chief Justice Chagla himself reconsidered his decision in M/s. Hiranand Parsrams, case viz. C.R.A. No.536 of 1953 dated 11th December, 1953. This would be clear from the decision of the Division Bench in the case of (Gokulprasad Poddar v. Ramrikhdas Parasrampuria)4, reported in 57, Bombay Law Reporter. pg.402, to which Mr. Naik has invited my attention. The learned Chief Justice has, thus, observed in Gokulprasad Poddars case, at page 403 :- "Now, the question raised by Mr. This would be clear from the decision of the Division Bench in the case of (Gokulprasad Poddar v. Ramrikhdas Parasrampuria)4, reported in 57, Bombay Law Reporter. pg.402, to which Mr. Naik has invited my attention. The learned Chief Justice has, thus, observed in Gokulprasad Poddars case, at page 403 :- "Now, the question raised by Mr. Nain is of considerable importance because this question often arises where leave to defend is either refused or conditionally granted. The question we have to consider is whether a summary suit would lie when the plaintiffs claim is not based upon any written agreement but is based upon an agreement in order to prove which evidence would have to be given by the plaintiff. It seems that a view was taken in Parmanand Maneklal v. Special Land Acquisition Officer, Ahmedabad, by myself and my brother Mr. Justice Shah and also in Hirachand Parsaram v. Lachmandas Parsuram by me sitting singly that where the plaintiff has not to prove an oral agreement, he could not enforce that agreement by a summary suit. It seems to us that view should be reconsidered on a more careful consideration of the rule framed by us with regard to the filling of a summary suit". (Emphasis supplied 17. In view of the above, the learned Appellate Judge was wholly in error in setting aside the Judgment of the learned trial Judge. The two grounds on which the learned Appellate Judge held that the provisions of Rule 77-F were not attracted are wholly erroneous and non-existent. There was also a clear error of law in placing reliance on the Judgment of the learned Chief Justice, which has been reconsidered by the Division Bench, as is clear from the decision of Gokulprasad Poddars, case (supra). There is, thus, no merit in any of the contentions that are sought to be raised by Mr. Deodhar, who tried to support the order passed by the Appellate Court. Mr. Deodhar no doubt relied upon the Judgment of a Division Bench of this Court dated 11th August 1986 in Appeal No. 712 of 1986. In my view, the ratio of that decision can have no application whatsoever to the facts of the present case. The principles laid down by the Supreme Court in M/s. Machalac Engineers Manufacturers, case (supra) are clear. In my view, the ratio of that decision can have no application whatsoever to the facts of the present case. The principles laid down by the Supreme Court in M/s. Machalac Engineers Manufacturers, case (supra) are clear. The averments in the plaint clearly attract the provisions of Rule 77-F. The dispute is a summary dispute. The defences raised by the respondents are totally sham and bogus and mala fide. They are no better than moonshine. One has to look to the substance of the defences and not merely the words such as overdraft facility and dispute regarding the hypothecated goods etc. The claim is squarely based on the promissory-notes, as also for a fixed sum of money in the nature of debt arising on a written contract, as spelt out by the correspondence at Exhs. "A" to "C". 18. In my view, the Appellate Judge was clearly in error in granting unconditional leave. The impugned Order dated 31st January, 1991 is set aside. The Order dated 9th October, 1990 passed by the learned trial Judge is restored with the modification that the respondents are directed to deposit the amount of Rs.75 lacs within four weeks from today. The trial Court is directed to hear and dispose of the dispute on a priority basis. The dispute is pending since 1990. The claimant is a Bank. Having regard to the peculiar circumstances of the case, the trial Court is directed to hear and dispose of the dispute as expeditiously as possible, preferably on a day to day basis and in any case, before the end of March, 1995. Rule is made absolute with costs. 19. Writ to be sent down within two weeks from today. Petition allowed.