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TMI Blog1988 (3) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on the bill amount. The plaintiff had alleged that the defendants had returned goods of the value of ₹ 2,609.57 and had made cash payment of ₹ 299.80 and had failed to pay the balance amount as also to send the 'C'-Form. Thus, a sum of ₹ 6,800 was said to be due towards principal and ₹ 600 on account of sales tax and ₹ 4,125 for interest. The total claim thus came to ₹ 11,525. 2. The defendants disputed that the plaintiff was a registered firm or that Babulal who purported to represent the plaintiff-firm was a partner. This itself was a triable issue, according to the defendants. An unusual defence was raised that the bill was made for a smaller amount in order to avoid sales tax and to cheat the Revenue. A substantial defence raised was that the invoice was neither an order nor a contract and as such the suit was not maintainable as a summary suit under Order 37 of the Code of Civil Procedure. Repayment of ₹ 9,252.92 was pleaded and the actual total amount earlier due was said to be ₹ 10,713.89. It was pleaded that payments were made against cheques, but the cheques were not returned by the plaintiff and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to an unconditional leave to defend. 7. It was conceded that the defendants have not filed any appeal, but, according to Mr. Shah, if the order refusing unconditional leave is set aside, then, consequently, the decree also must stand set aside; and he has relied on the decision of the Delhi High Court in Siri Krishnan Bhardwaj v. Manohar Lal Gupta AIR 1977 Delhi 226 , and observations made by this Court in a Division Bench decision in G. Sundaram Chettiar v. P.A. Valli Ammal 68 M.L.J. 16 : A.I.R. 1935 Mad. 43 as well as in Kota Kanakayya v. Kamepalli Lakshmayya AIR1951Mad218. Reliance was also placed on the decision of Sathiadev, J. in G. Madanlal v. P. Padma Bai (1987) 100 L.W. 300. 8. In Siri Krishnan Bhardwaj's case, AIR 1977 Delhi 226 a Division Bench of the Delhi High Court has held that the effect of refusal of leave to appear and defend is that statutorily the allegations in the plaint have to be treated as admitted and a decree has to follow. In such a case, the decree is consequential on the earlier order refusing to grant leave and if the earlier order is set aside the latter order must also fall. In paragraph 15 of the judgment, Prakash Narain, J. (as he the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree. Clearly, if in this case, the order which is under appeal and which in my opinion was a wrong order had not been made, the defendant would have been given leave to defend and the result might have been quite different to what it has been. I am, therefore, of the opinion, though as I said before, I came to this opinion with some hesitation that it is competent in such a case as this for the Appellate Court to entertain an application for stay of proceedings Under Order 41, Rule 5, Civil Procedure Code. At the same time, Sub-clause (3) of that rule prevents an order for stay of execution being made unless security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him. It appears to me that the provision is mandatory and that, no security having been given, it is impossible for this Court to order stay of execution; and stay of execution must accordingly be refused. It is true that in Sundaram Chettiar s case, 68 M.L.J. 16 : A.I.R. 1935 Mad. 43 as a fact, the Court declined to grant stay of execution because the mandatory provision in Order 41, Rule 5(3) was not complied with. However, important are the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Court had committed a material irregularity in the exercise of its jurisdiction by imposing a condition of deposit of ₹ 1,500 in an arbitrary manner. Consequently, the learned Judge allowed the revision petition and ordered restoration of the suit to the file of the trial Court and directed it to be disposed of on its own merits. 11. In the light of these decisions, I must proceed on the assumption that the revision petition does not become infructuous and has to be decided on its own merits. 12. On merits, it appears to me that it would be too superficial a view to hold that no written contract exists in the instant case. The contention appears to be that a written contract as contemplated by Order 37, Rule 1, C.P.C. must be a contract which is signed by both parties. Now, the relevant part of Order 37, Rule 1(2) reads as follows: Subject to the provisions of Sub-rule (1), the Order applies to the following classes of suits, namely: (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment. Warrington, L.J. in his judgment referred to the fact that though written confirmation was not sent by the purchasers, the arbitrators had come to the conclusion that there was a parol acceptance by Ruf Co. of the terms of the sold note, and observed as follows: Taken in conjunction with the rest of the award they seem to me to indicate that the arbitrators found that Ruf Co. had confirmed the contract though not in writing, and if so they may quite properly refer to the contract as a contract in writing . Although the memorandum of it was signed by one party only. Duke, L.J. in a separate judgment observed at page 670: As to the suggestion which was made that the words contract in writing import a contract made by means of a writing or writings signed by both parties, I do not think the words necessarily have that meaning. A document purporting to be an agreement may be an agreement in writing sufficient to satisfy the requirements of an Act of Parliament though it is only verified by the signature of one of the parties: In Re Jones (1895)2 Ch. 719. Here the question is one of a bargain for the sale of goods. I doubt whether the objection which is here set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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