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2022 (9) TMI 1351 - HC - Companies LawSuit for recovery alongwith interest - Order XXXVII of Code of Civil Procedure, 1908 - whether the averments in the pleadings constitute an acknowledgment of debt to the extent of the amount, the defendant agreed to refund? - HELD THAT:- In the light of the exposition of the legal connotation of the terms “debt” and “acknowledgment” the pleadings extracted it satisfies the requirement of both “debt” and “acknowledgment” to the extent of the amount, which the defendant agreed to refund. The submission on behalf of the defendant that, in the absence of a written contract to refund the amount, the tenability of the suit itself is suspect, does not merit acceptance unreservedly, if the afore-extracted pleadings are construed in the light of the aforesaid enunciation of law. In my view, the acknowledgment of liability to pay the amount to the extent agreed to by the defendant itself furnishes a foundation for institution of Summary Suit. The audited balance-sheet of the defendant for the year ending 31st March, 2020, under the caption other current liabilities includes a sum of Rs.59,33,517/-, payable towards the advances from customers in “E” wing. This, according to the plaintiffs, is the very amount which is payable by the defendant to the plaintiffs, after deducting the amount which defendant claims it is entitled to deduct. There is material to indicate that apart from the plaintiffs, the transactions of the rest of the persons, who had booked the flats in “E” wing, did not materialise. Prima facie, the claim of the plaintiffs that the said amount represents the consideration parted with by the plaintiffs can not be said to be without substance. The audited balance-sheet may furnish a sustainable ground for institution of a summary Suit on the premise that the statement therein constitutes an acknowledgment of liability. The plaintiffs may be termed as “investors”, if not “allotties”. Nonetheless, the facts remain that the plaintiffs had parted with a sumptuous amount towards the consideration, the project has not come up and the defendant agreed to refund the consideration after deducting a portion of the said amount on account of cancellation and also the amount of service tax, albeit, allegedly, at the instance of plaintiffs - The defendant is granted leave to defend the suit on the condition of deposit of a sum of Rs.5,107,767/within a period of six weeks from the date of this order. Application disposed off.
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