9911796707
TMI Blog2008 (3) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff on the facts that the defendant is a partnership firm , carrying on the business at Narayan Dhru Street, Mumbai. The plaintiff being a non-resident Indian filed the suit through his father and power of attorney holder. According to the plaintiff, his father and the family of the defendant had good relations. Shri Sharad P. Kadakia, a partner of the defendant firm approached the plaintiff and took a loan of Rs. 5,00,000/-. This loan was paid by a cheque drawn on the Ahmedabad Mercantile Co-operative Bank Limited. There was an oral agreement between the parties that they would pay interest at the rate of 18 per cent per annum on the amount advanced. The defendant actually paid 18 per cent interest upto 31st March, 2001 and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit. In the affidavit, a preliminary objection was taken that the suit of the plaintiff is barred by law of limitation. It was stated that family members of the defendant and the plaintiff are partners of the firm known as M/s. S.R. N. Engineering Industries and the claim of the plaintiff was false. Other detailed facts have been given in the reply denying the liability to pay any amount to the plaintiff. It is averred that the plaintiff had not lent any amount to the defendant. In fact, the amount of Rs. 2,00,000/-paid by the plaintiff was paid to the Defendants under arrangement and the amounts if at all payable are to the extent of 50 per cent and that too they will be payable to Ramesh C. Kadakia, Mr. Biren R. Kadakia or Mrs. Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be entitled to apply for judgement in his favour. (c) On deposit the said amount shall be invested in any nationalised bank initially for a period of three years and to be renewed thereafter from time to time. (d) Summons for judgment is disposed of with the aforesaid directions. (e) It will be open for plaintiff to apply for withdrawal of the amount, if any application in that behalf is made the same should be considered on its own merits and in accordance with law. 4. The contention raised on behalf of the appellant is that the present suit is not maintainable under the provisions of Order 37 of the Code, inasmuch as the TDS certificates at Exhibits-A to A-3 to the plaint cannot in law constitute a written contract between the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his issue before this Court. The suit as framed would be maintainable under Order 37 of the Code as the TDS certificate is even an acknowledgement and reflects a written contract between the parties. 7. As already noticed, the learned single Judge while granting conditional leave to the appellant found that the Full Bench judgment was not applicable as issuance of the certificates or deduction of interest was not in dispute. The learned single Judge also found that the certificates in question referred to are nothing else but a liability to pay interest on the loan which had been taken. 8. The first and foremost we would like to consider whether suit of the plaintiff is covered under the provisions of Order 37 of the Code, as determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Jyotsn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law as well as facts. 9. 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 ing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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