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2007 (4) TMI 698 - DELHI HIGH COURTMaintainability of application seeking leave to defend - barred by limitation - Loan advanced acknowledged in books of account, balance sheets and profit and loss accounts - Parties signed a Memorandum of Understanding - cheque issued in terms of the Memorandum, dishonoured on account of insufficiency of funds - HELD THAT:- I find that the plaintiff has placed complete details of the cheques which have been issued towards the loan advanced to the defendant. The amounts received from the defendant have also been detailed and statements of account have also been filed as Annexure 'A' to the amended suit. The amount which was advanced by the plaintiff is acknowledged in the balance sheet of the defendant. The plaintiff has asserted that it has paid an amount of ₹ 64.30 lakhs and additionally, ₹ 3.50 lakhs on 21st April, 2001. The plaintiff has further advanced an amount of ₹ 5 lakhs on 24th April, 2001. Against this, the defendant has repaid an amount of ₹ 18.00 lakhs on 12th April, 2004 and ₹ 11.00 lakhs on 15th April, 2004 leaving a balance amount due and payable by the defendant of ₹ 43,80,000/-. The payments made by the defendant stand duly stated before this court. The cheques which were issued and dishonoured have been placed on record. The defendant has not urged that it has made any other payment to the plaintiff. In these circumstances, even the amount which the defendant is liable to pay to the plaintiff is clearly established on record. I therefore, find force in the submission on behalf of the plaintiff that the suit based on the balance sheets of the defendant company would by itself be maintainable and covered under clause 2 (b) (i) of Rule 1 of Order 37 of the Code of Civil Procedure, 1908. There can be no dispute that the reliance by the plaintiff on the Memorandum of Understanding dated 1st April, 2004 would also be covered under the same clause of Order 37 in as much as such Memorandum of Understanding would constitute a written contract. Undoubtedly, in the instant case, the defendant has failed to abide by the Memorandum of Understanding resulting in the plaintiff being entitled to submit that the same was not binding on its very terms. In the instant case, the entries in the books of account are duly corroborated in the balance sheets as well as in the admissions of the defendant in its correspondence with the plaintiff as also the afore noticed Memorandum of Understanding dated 1st April, 2004. Therefore, such corroboration as is envisaged u/s 34 of the Indian Evidence Act is also available It is well settled that the power to grant pendente lite and future interest vests in the court u/s 34 of the Code of Civil Procedure and certainly there can be no prohibition to the maintainability of the present suit on the ground that the plaintiff has incorporated a prayer for pendente lite and future interest. Thus, it has to be held that the objections of the defendant are wholly without merit and the defence disclosed in support of the leave to defend do not require adjudication. These principles clearly apply to the defence raised by the defendant which consequently deserves to be rejected. I therefore, find no merit in the case by the defendant in this application and consequently, the present application is hereby dismissed.
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