TMI Blog2008 (3) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... f law and it is obligatory upon the respondent to show that on the bare reading of the plaint, the suit under the provisions of Order 37 of the Code would be maintainable. The issuance of TDS certificates does not amount to an acknowledgement of defendant within the meaning of Section 25 of the Indian Evidence Act and the Full Bench judgment of this Court in the case of Jyotsna [ 2007 (4) TMI 748 - BOMBAY HIGH COURT] puts the matter beyond doubt. A suit based upon bill of exchange, hundi, promissory note to recover a debt or liquidated demand payable by the plaintiff to the defendant with or without interest but arising from a written contract, or an enactment, or a guarantee where the claim against the principal is in respect of a debt or liquidated demand only. We are unable to accept the contentions raised on behalf of the respondent that issuance of certificate for tax deduction at source would be a document which will fall in any of the clauses stated under Order 37 Rule 2. Admittedly, the loan was advanced as a friendly loan to which serious dispute has been raised. The dispute raised by the defendant relates to questions of law as well as facts. It is a settled princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co-operative Bank Limited. There was an oral agreement between the parties that they would pay interest at the rate of 18 per cent per annum on the amount advanced. The defendant actually paid 18 per cent interest upto 31st March, 2001 and thereafter at the rate of 15 per cent per annum on the total sum of ₹ 5,00,000/-. The defendant also deducted Tax at Source and issued Form 16-A for such deductions. The interest was paid upto 26th September, 2003, whereafter only TDS certificates were issued, copies of which have been annexed to the plaint at Exhibits-A, A-1 to A-3. Thereafter, no amount was paid to the plaintiff as per the agreed terms, despite his repeated requests. The plaintiff had averred in the plaint that the defendants are liable to pay the principal sum of ₹ 5,00,000/-and interest at the rate of 15 per cent per annum from 1st April, 2002 upto 31st March, 2003, after reducing the TDS amount and thereafter 15 per cent interest upto the date of filing of the suit and even thereafter. The plaintiff, through his advocate, issued a notice to the defendant on 28th August, 2006 for payment of the amount in question which was duly served upon the defendant. Despite s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder: (a) Upon defendants depositing in this Court principal sum of ₹ 5 lakhs within twelve weeks from today, conditional leave to defend the suit is granted. In that event, the suit shall stand transferred to the list of commercial causes with usual directions to file written statement and discovery and inspection. (b) If the amount as directed is not deposited within the stipulated time plaintiff would be entitled to apply for judgement in his favour. (c) On deposit the said amount shall be invested in any nationalised bank initially for a period of three years and to be renewed thereafter from time to time. (d) Summons for judgment is disposed of with the aforesaid directions. (e) It will be open for plaintiff to apply for withdrawal of the amount, if any application in that behalf is made the same should be considered on its own merits and in accordance with law. 4. The contention raised on behalf of the appellant is that the present suit is not maintainable under the provisions of Order 37 of the Code, inasmuch as the TDS certificates at Exhibits-A to A-3 to the plaint cannot in law constitute a written contract between the parties. The plaint, as frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal, no reference has been made to any written contract. On the contrary, it is averred that a friendly loan was given and the payment was made by a cheque. It is not even pleaded nor is case of the respondent that any written contract was executed between the parties. The entire reliance has been placed upon Exhibits-A to A-3 to the plaint, copies of the TDS certificates issued by the plaintiff from 31st May, 2000 to 26th September, 2003. The suit was instituted in September, 2006. Certainly, an averment has been made in paragraph 13 of the plaint that the suit is within the provisions of Order 37 and no relief falls outside the ambit of the said provision. We may even usefully refer to the notice dated 28th August, 2006 which was served by the respondent upon the appellant. Even in the notice dated 28th August, 2006, no reference was made to any agreement or contract between the parties. The claim was raised in the notice for claiming the interest at the rate of 15 per cent upto 31st March, 2003 (minus TDS paid) and thereafter at the rate of 15 per cent per annum. Objection in regard to maintainability of the suit has been taken by the appellant and argued before the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as facts. 9. It is a settled principle of law that before a plaintiff can bring a suit to be tried under the special summary procedure provided under Order 37 of the Code, it is obligatory on the part of the plaintiff to satisfy the Court that the suit as framed is not only maintainable under the provisions of Order 37 of the Code but no relief whatsoever have been claimed in the suit that are falling outside the ambit and scope of the said provision. Wherever such an objection is taken, which in fact has been taken in the present case, the law requires the plaintiff in a suit to show that taking the averments made in the plaint to be correct, the suit satisfies the ingredients of the special provisions. If the ingredients of Order 37 on the plain reading of the plaint are not satisfied, then plaintiff cannot claim any benefit of the summary procedure. Even on the plea of demur, the appellant is unable to demonstrate in the present case that suit squarely falls within the ambit of Order 37 and the reliefs claimed therein including the interest claim falls within the ambit and scope of the said provision. 10. For the reasons aforestated, we allow this appeal, set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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