- (1.) BY this appeal, the original defendants in Summary Suit No. 5307 of 1999 challenge the order dated 4th June, 2002 passed by the learned Single Judge of this Court in Summons for Judgment No. 294 of 2000. The respondents/plaintiffs filed Summary Suit No. 5307 of 1999. The case of the plaintiffs was that the plaintiffs have given to the defendants as intercorporate loan a sum of Rs. 25,00,000/- for a period of two months. According to the plaintiffs, the agreed rate of interest wa. s 27% p. a. Certain shares were also pledged by the defendants with the plaintiffs. The defendants also executed a demand promissory note dated 1/11/1995. The amount of Rs. 25,00,000/- was paid by the plaintiffs to the defendants by a cheque dated 3/11/1995. According to the plaintiffs, in the month of January 1996, the defendants issued two cheques in favour of the plaintiffs for repayment of the loan dated 16/01/1996 and 25/01/1996, but both the cheques were dishonoured. Thereafter, according to the plaintiffs, the defendants requested for renewal of the loan as they were not in a position to repay the amount. The loan was renewed and therefore, the defendants executed a fresh demand promissory note dated 15/03/1996 for Rs. 25,00,000/-, The defendants also issued a post dated cheque dated 4/06/1996 in the amount of Rs. 25,00,000/ -. According to the plaintiffs, this cheque when presented to the bank was again dishonoured. Ultimately, as the amount was not being repaid, the plaintiffs filed suit for recovery of the amount. The plaintiffs stated in the plaint that in August 1998 and November 1990, an amount of Rs. 1,00,000/- has been paid by the defendants to the plaintiffs. In the particulars of the claim, the plaintiffs claim a decree in the amount of Rs. 33,44,825/- which according to the plaintiffs, has been shown as due and payable by the defendants to the plaintiffs upto 31/08/1997 as per the confirmation letter dated 3/09/1997 and the plaintiffs also claim a decree in the amount of Rs. 8,35,000/- being interest at the rate of 18% p. a. on the amount of Rs. 25,00,000/- from 1/09/1997 to 30/08/1999. In the summons for judgment, the defendants applied for leave to defend by filing an affidavit. The summons for judgment was decided by order dated 4th June, 2002. From the order of the learned single Judge, it appears that the principal defence that was raised was that as per the promissory note, interest could have been charged at the rate of 18% p. a. whereas according to the claim of the plaintiffs, interest was charged at the rate of 27% p. a. According to the defendants, therefore, for charging interest at the rate of 27% p. a. there is no written agreement between the parties and therefore, the summary suit was not maintainable. Perusal of the judgment of the learned Single Judge, however, shows that according to the learned Single Judge, though statement has been made in the plaint that interest was chargeable at the rate of 27% p. a. , actually the plaintiffs have charged interest at the rate of 18% p. a. The learned Single Judge, however, granted leave to defend to the defendants on depositing an amount of Rs. 30,00,000/- within a period of twelve weeks from the date of the order.
(2.) IN this appeal, it is this order dated 4th June, 2002 granting conditional leave to defend to the defendants which is challenged. Before us, the learned Counsel appearing for defendants argued only one contention. He submits that as per the particulars of the claim given at Exhibit 'l' to the plaint, an amount of Rs. 33,44,825/- was claimed as per confirmation dated 3/09/1997. According to the confirmation dated 3/09/1997 at Exhibit 'h' to the plaint, an amount of Rs. 32,45,590/- is shown as the amount of loan including interest upto 30/06/1997 and an amount of Rs. 99,235/- is shown as interest upto 31/08/1989 at the rate of 18% p. a. According to the learned Counsel, the amount of Rs. 32,45,590/-contains interest at the rate of 27% p. a. upto 30/06/1997 and therefore, a part of the claim which is made in the summary suit was not triable in the summary jurisdiction of the Court under Order XXXVII of C. P. C. The learned counsel, relying on a judgment of the Division Bench of this Court in the case of (M/s. Randerian and Singh Pvt. Ltd. and others v. Indian Overseas Bank), decided on 24/02/1987 (in Appeal No. 1060 of 1986), as also a judgment of Division Bench of this Court in the case of (M/s. Hydraulic and General Engineering Ltd. and another v. UCO Bank), reported in 1998 I. L. J. 793, submits that as the plaintiffs have made in their plaint a claim for interest, unwarranted either by statutory provision or by contractual document, the suit is one which cannot be tried as a summary suit and therefore, according to the learned Counsel, summons for judgment ought to have been disposed off by the learned Single Judge by granting unconditional leave to defend to the defendants.
(3.) THE learned Counsel appearing for plaintiffs, on the other hand, submits that the amount of Rs. 32,45,590/- claimed as loan amount with interest upto 30/06/1997 in the document at Exhibit 'h' is the amount of Rs. 25,00,000/- with interest at the rate of 18% p. a. and not with interest at the rate of 27% p. a. The learned Counsel submits that in any case, even if it is found that a part of the claim made in the summary suit cannot be tried as a summary suit, the plaintiffs always have an option to give up that claim so that their suit can be tried as a summary suit. The plaintiffs therefore sought leave of the Court to amend the claim by substituting new particulars of claim, showing principal amount of Rs. 25,00,000/- with interest at the rate of 18% p. a. from 1/01/1996 till 30/06/1999.;