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2015 (9) TMI 1738 - GUJARAT HIGH COURTDishonor of Cheque - grant of conditional leave to defend when the claim for interest was not backed by any written contract - whether the trial court was justified in directing the defendants to deposit only Rs.50,00,000/- when the entire principal amount of Rs.96,03,766/- had been admitted by them? - HELD THAT:- The principal amount of Rs.96,03,766/- claimed in the summary suit has not been disputed by the defendants. The sole ground raised in the petition filed by the defendants is that the claim of interest, not being based upon a written contract, could not have been made in a summary suit. The cause of action for filing the suit arose on the date when the defendants issued various cheques, on the date when the cheques were returned, and on 30th October, 1996, when the defendants failed to make the remaining payment of Rs.96,03,766/- on 27th November, 1996 when the notice was served to the defendants, on 10th December, 1996, when the defendants replied the notice and that the same cause of action is continuous. The notice dated 27th November, 1996 referred to in the above paragraph is the notice issued under section 138 of the Negotiable Instruments Act upon dishonour of the cheques in question. Evidently, therefore, as rightly contended by the learned counsel for the plaintiff, the suit has been instituted on a negotiable instrument. Sub-rule (2) of rule 1 of Order XXXVII of the Code provides that rule 1 applies to all the classes of suits mentioned therein, which includes (a) suits upon bills of exchange, hundies and promissory notes - the statute itself provides for the grant of interest and hence, when a suit is instituted on a negotiable instrument, a claim for interest can be made in view of section 80 of the Act and does not need a written contract in that regard. Besides, in the opinion of this court, where the interest claimed by the plaintiff is on the amount in respect of which cheques have been issued by the defendants, such claim is governed by section 80 of the Negotiable Instruments Act and consequently, the claim of interest made by the plaintiff is a claim of interest under an enactment, therefore, such claim can also be said to be governed by the provisions of Order XXXVII rule 1(2)(b)(ii) of the Code. Accordingly, no relief which does not fall within the ambit of rule 2 of Order XXXVII of the Code can be said to have been claimed in the plaint. Therefore, having regard to the facts of the present case, it cannot be said that the claim of interest is beyond the scope of Order XXXVII of the Code. A suit can be said to fall outside the ambit of Order XXXVII only if the relief claimed therein is based on an action the nature of which does not fall within the classes specified in Order XXXVII rule 1(2). The relief cannot be said to fall outside the ambit of Order XXXVII rule 2 merely because the quantum thereof is excessive, so long as the nature of the relief falls within the clause specified in Order XXXVII rule 1(2) of the Code - the trial court was justified in granting conditional leave to defend to the defendants when the claim for interest was not backed by any written contract in view of the fact that the claim of the plaintiff was based upon bills of exchange (cheques). Liability to pay the principal amount of Rs.96,03,766/- - HELD THAT:- It may be germane to refer to the second proviso to sub-rule (5) of rule 3 of Order XXXVII of the Code which provides that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. Thus, from the language employed in the said proviso, it is mandatory for the defendant to deposit the admitted amount as a pre-condition for grant of leave to defend the suit. Under the circumstances, having regard to the fact that the principal amount is admitted as due from them by the defendants, the trial court was not justified in directing the defendants to deposit only Rs.50,00,000/- and ought to have directed them to deposit the entire amount admitted by them. The summary suit for the claim of interest in the facts and circumstances of the present case is maintainable - Application dismissed.
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