2008 (3) TMI 754 - HC - Indian Laws

TDS certificates can be treated as an acknowledgement in writing of the debt due? - Suit for recovery framed under Order 37 would be maintainable or not - Liability to pay interest on the loan - HELD THAT - The claim was raised in the notice for claiming the interest at the rate of 15 per cent upto 31st March, 2003 (minus TDS paid) and thereafter at the rate of 15 per cent per annum. Objection in regard to maintainability of the suit has been taken by the appellant and argued before the learned single Judge with some emphasis. This contention has been noticed in the impugned judgment. We are unable to find any merit in the contention of the counsel for the respondent that the appellant cannot be permitted to argue this issue because specific objection in that regard was not taken in the application for leave to defend. Firstly, the application for leave to defend does show averment that the suit of the plaintiff is not maintainable and should be dismissed. Secondly, this is a question of law and it is obligatory upon the respondent to show that on the bare reading of the plaint, the suit under the provisions of Order 37 of the Code would be maintainable. The issuance of TDS certificates does not amount to an acknowledgement of defendant within the meaning of Section 25 of the Indian Evidence Act and the Full Bench judgment of this Court in the case of Jyotsna 2007 (4) TMI 748 - BOMBAY HIGH COURT puts the matter beyond doubt. A suit based upon bill of exchange, hundi, promissory note to recover a debt or liquidated demand payable by the plaintiff to the defendant with or without interest but arising from a written contract, or an enactment, or a guarantee where the claim against the principal is in respect of a debt or liquidated demand only. We are unable to accept the contentions raised on behalf of the respondent that issuance of certificate for tax deduction at source would be a document which will fall in any of the clauses stated under Order 37 Rule 2. Admittedly, the loan was advanced as a friendly loan to which serious dispute has been raised. The dispute raised by the defendant relates to questions of law as well as facts. It is a settled principle of law that before a plaintiff can bring a suit to be tried under the special summary procedure provided under Order 37 of the Code, it is obligatory on the part of the plaintiff to satisfy the Court that the suit as framed is not only maintainable under the provisions of Order 37 of the Code but no relief whatsoever have been claimed in the suit that are falling outside the ambit and scope of the said provision. Wherever such an objection is taken, which in fact has been taken in the present case, the law requires the plaintiff in a suit to show that taking the averments made in the plaint to be correct, the suit satisfies the ingredients of the special provisions. If the ingredients of Order 37 on the plain reading of the plaint are not satisfied, then plaintiff cannot claim any benefit of the summary procedure. Even on the plea of demur, the appellant is unable to demonstrate in the present case that suit squarely falls within the ambit of Order 37 and the reliefs claimed therein including the interest claim falls within the ambit and scope of the said provision. Therefore, we allow this appeal, set aside the impugned order under appeal. We further direct that the suit shall proceed as an ordinary suit and not as a summary suit under the provisions of Order 37 of the Code.

Summary

Issues:
1. Suit maintainability under Order 37 of the Code of Civil Procedure.
2. Grant of conditional leave to defend the suit.
3. Validity of TDS certificates as a written contract.
4. Bar on raising new grounds in the application for leave to defend.

Analysis:

Issue 1: Suit maintainability under Order 37 of the Code of Civil Procedure:
The plaintiff filed a suit under Order 37 against the defendant for recovery of a loan amount with interest. The defendant raised objections, including the suit being barred by limitation and lack of money lending license. The single Judge granted conditional leave to defend, requiring the defendant to deposit the principal amount within a specified time. The appellant contended that the suit was not maintainable under Order 37 due to the nature of the claim and absence of a written contract. The Court analyzed the provisions of Order 37 and found that the suit did not fall within its scope as no written contract was pleaded or presented. The TDS certificates were not considered as an acknowledgment of debt, and the suit was directed to proceed as an ordinary suit.

Issue 2: Grant of conditional leave to defend the suit:
The defendant applied for leave to defend, citing issues of limitation and disputing the loan transaction. The single Judge granted conditional leave, requiring the deposit of the principal amount within a specified time frame. The appellant argued for unconditional leave based on the complexity of facts and the claim being time-barred. However, the Court upheld the conditional leave granted by the single Judge.

Issue 3: Validity of TDS certificates as a written contract:
The appellant contended that the TDS certificates could not constitute a written contract under Order 37. The Court examined the nature of the certificates and their legal implications. It was established that the TDS certificates did not amount to an acknowledgment of debt or reflect a written contract between the parties, as required under the law.

Issue 4: Bar on raising new grounds in the application for leave to defend:
The respondent argued that the appellant was estopped from raising new grounds, such as the suit's maintainability, as they were not initially raised in the application for leave to defend. The Court rejected this argument, emphasizing that it was essential to determine the suit's maintainability under Order 37 based on the pleadings and relevant legal provisions.

In conclusion, the Court allowed the appeal, setting aside the order for conditional leave and directing the suit to proceed as an ordinary suit.