The Plaintiffs have filed a suit against Defendant No.1 which is a partnership firm. Plaintiffs have averred that Defendant Nos.2, 3 and 4 are partners of the 1st Defendant. It is the case of the Plaintiffs that the Defendants placed orders on them for goods. The said goods were supplied by the Plaintiffs to the Defendants. The Plaintiffs have relied on the Challans. The first bill is dated 12th May, 1988 and other is dated 5th June, 1988 in so far as the subject matter of the present suit is concerned. The first bill was payable on 24th June, 1988 and second on 18th July, 1988. The Plaintiffs issued to the Defendants 'C' Forms on 8th October, 1988 in respect of both the bills. The number of the bill is referred to in the 'C' Form as also the value of the material supplied. The Defendants apart from the said two bills were also owing to the Plaintiffs monies in respect of other bills in respect of which Plaintiffs have not filed any suit. It is the case of the Plaintiffs that the oral order coupled with the bills, Challans and the 'C' Forms would constitute agreement and as such the Plaintiffs are entitled to maintain the summary suit. In particulars of claim apart from the principal amount. Plaintiffs have claimed interest at 21% p a.
2.The Plaintiffs have taken out Summons for Judgment. Defendants have been served. The Defendants have appeared. The Defendants have filed their reply to the Summons for Judgment. Various contentions have been raised by the Defendants. The Defendant No.2 has taken a contention that he is not a partner of the Defendant No.1 firm. That it is the HUF of which he is a Karta which is the partner. It is, therefore contended that the suit against Defendant No.2 is not maintainable. It is then contended that the suit is numbered in the year 1993. Summons for Judgment has been taken out in 1997 and consequently the Defendants are entitled to unconditional leave to defend under Rule 227 of the Original Side Rules. Thirdly, it is contended that there is no written agreement and consequently the suit cannot be treated as a summary suit and for that reason also the Defendants are entitled to unconditional leave to defend. It is also contended that the bills are dated 12th May, 1988 and 6th June, 1988 and in that light of the matter the suit is barred by limitation. At any rate it is contended that there was no agreement in writing in so far as the interest is concerned and even otherwise if the claim of the Plaintiffs is accepted that the commencement of limitation commenced from 24th June, 1988 and 18th July, 1988 than interest as claimed for anterior period would be barred by limitation. In addition on behalf of the Defendant Nos.1, 3 and 4 it is contended that Defendant No.2 not being a Partner could not have signed the 'C' Form on behalf of the partnership. It is then contended that some of the partners have not been joined for all these reasons, it is contended that the Defendants should be entitled to unconditional leave to defend the suit. Defendants have relied on the Judgment of a learned Single Judge in Central Bank of India v/s Femme Pharma Limited and Ors. AIR 1982 Bombay 67 to point out that if Summons for Judgment is taken out after such delay, the Defendants are entitled to unconditional leave to defend. Following this Judgment reliance is also placed on some other Judgments including Nijjar, J. in Summons for Judgment No 748 of 1996 in Summary Suit No.4283 of 1995 which has followed the Judgment in the case of Central Bank of India (Supra).
3.I have considered the various arguments. In the first instance, in so far as Rule 227 is concerned, the Judgment in Central Bank of India (Supra) as also various other Judgments of the Single Judges which have followed the said Judgment and had granted unconditional leave were considered by me in the case of Bank of India Finance Limited vs. Padma Alloy Casting Pvt. Ltd. in Summons for Judgment No.662 of 1994 in Summary Suit No.2289 of 1993 dated 26th March, 1999. The contention in so far as Rule 227 of the Original Side Rules is concerned has begin dealt with in paragraph 11 of the said Judgment. In so far as the Judgment of Modi, J. in Central Bank of India (supra) after perusing the said Judgment I have held that the said Judgment is not an authority for the proposition that if Summons for Judgment has not been taken out within the time as set out Defendants are entitled to unconditional leave to defend. Even before Modi, J. what was in issue was subsequent to the amendment to Rule 227 of Original Side Rules, what was the discretion vested in court in the event the Summons for Judgment had not been taken out. I have also referred to the other Judgments of other Single Judges and have held that in the absence of the issue being an issue in the Summons for Judgment and in the absence of any reasons it cannot be said that the Judgments have dealt with interpretation of Rule 227 on merits and as such cannot be said to be the authorities for the proposition. In order to be ratio decendi, apart from other requirements, reasons have to be recorded for the view taken. The Judgment of the Apex Court in M/s.Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation AIR 1977 SC 577, was also not considered. That contention must, therefore, be rejected.
4.The next contention is that there is no concluded contract. It is true that for a suit to be maintained as a summary suit it must fall within Order XXXVII rule 2 as amended by this Court. The question is whether the Challans and issuance of 'C' Forms would constitute a contract and/or agreement in writing. Various Judgments of this Court have taken a view that exchange of correspondence between the parties and/or orders placed and bills submitted and accepted would amount to an agreement based on which a summary suit would lie. In the instant no doubt the contract for goods was orally made. However, the goods were despatched and a Challan issued. That by itself could not have constituted an agreement in writing. However, what is relevant is that thereafter the Defendants have issued 'C' Form in favour of the Plaintiffs on 8th October, 1988 wherein they have referred to the Invoice number and the amount. The invoice coupled with the 'C' Form to my mind would constitute a contract. The Defendants have accepted the terms as contained in the invoice pursuant to the issuing of said invoice to the Defendants. There would therefore be a concluded contract and as such a summary suit would be maintainable. The said contention must therefore be rejected.
5.It was then contended that the suit is barred by limitation. The Invoice dated 12th May, 1988 was payable on 24th June, 1988 and Invoice dated 6th June 1988 was payable on 18th July, 1988. The suit was lodged on 24th June, 1991. It is therefore clear that the suit was within limitation. The said contention must also be dismissed.
6.It was also contended that the Defendant No.2 is not a partner in his individual capacity but as Karta of HUF. Learned Counsel for the Plaintiffs has produced the extract from the Registrar of Firms wherein the Defendant No.2 is shown as a partner in his individual capacity. The Defendants therefore cannot now turn around to contend that the Defendant No.2 could not be sued as he was a partner in the capacity of Karta of HUF. The said contention must also be rejected.
7.In so far as the Interest is concerned, once I hold that there is an Agreement in writing the invoice clearly stipulated that interest would be payable at 21% if the invoice amount is not paid within 15 days. In other words the bills were payable on 24th June, 1988 and 18th July, 1988, if within 15 days the amount was not paid then interest become due on the said amount. It is, therefore, clear that the Plaintiffs are entitled to claim interest at 21%. It was also contended that a sum of Rs.1,48,086/- had been paid which has not been adjusted. The Plaintiffs have contended that apart from two bills various other bills were payable including bills as set out under Serial Nos.1 and 2 of para 4 of the Plaint. The said amount was adjusted against the said bills as the claim in respect of the said bills were still within limitation. The only question is whether the Plaintiffs are entitled to claim interest for the period previous to 24th June, 1988 in respect of one bill and 18th July, 1988 in respect of other. The Defendants to my mind have made out some credible defence in respect of the said issue.
8.However, Order XXXVII provides that the Court can grant leave to defend in respect of the entire claim or part of the claim. Here, prima facie only triable issue if and at all to my mind would be regarding interest as stated above. Therefore, in respect of that part of the claim for the said period the Defendants would be entitled to leave to defend. Considering the above, the following order :
9.Leave to defend on the Defendants depositing in this Court the principal amount of Rs.93,015/- in respect of Invoice No.2873 and amount of Rs.33,215/- in respect of Invoice No.2912 along with interest thereon at 21% from 24th June, 1988 in respect of Invoice No.2873 and at 21% from 18th July,
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1988 in respect of Invoice No.2912 till the date of filing of the suit and thereafter simple interest at 12% p.a on the principal amounts from the date of the suit till date. The said amount to be deposited within twelve weeks from today. On such deposit, suit to be transferred to the list of commercial causes. The Defendants shall file their written statement within 12 weeks thereafter. The parties will file affidavit of documents within eight weeks thereafter. Inspection and discovery will be completed within eight weeks thereafter. 10.In the event the amount is deposited, Prothonotary and Senior Master to initially deposit the amount in a nationalised bank for a period of one year and thereafter for equal successive periods till the disposal of the suit. 11.On failure to deposit, liberty to the Plaintiffs to apply for further orders. 12.In the circumstances of the case. there shall be no order as to costs. 13.Summons for Judgment disposed of accordingly.