KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.22 OF 2009 IN SUMMARY SUIT NO.1521 OF 2007 Chaitanya Navin Chandaran .. Plaintiff V/s. Kiritkumar A. Parekh .. Defendant ---- Yogendra M. Kanchan i/by Ajay Rao for the Plaintiff. Mr.G.N.Salunkhe for the Defendant. ---- CORAM : R.S.MOHITE, J DATE : 12/7/2010 P. C.: 1 This is a Summons for judgment taken out by the original plaintiff who has filed a summary suit for recovery of an amount of Rs.9,03,758.87/- with further interest on the principal loan amount of Rs.8,00,000/- at the rate of 18% p.a or such other further rate as prayed for. It is the case of the plaintiff that by five cheques an amount of Rs.8,00,000/- was loaned to the defendants for a business purpose. It is their case that there was an acknowledgment by the defendants’ letter dated 25.4.2006 and also some part payment has been made. A reply has been filed KJ 2 contending that suit does not lie as a summary suit. A short question here is whether there is a debt arising from a written contract between the parties. The averment made by the plaintiff in his suit concerning the maintainability of the summary suit is as follows :- “The present suit is filed under the provisions of Order XXX VII of the Code of Civil Procedure, 1908 on the basis of advance by a negotiable instruments, writing, Certificate for deduction of Tax at Source, confirmation, letter, and cheques issued by the Defendant evidencing acknowledgment of the outstanding amount and agreement to pay interest @ 18% per annum and no relief not falling within the ambit of Rule 2 of the said Order has been claimed in the above suit.” 2 On behalf of the defendants it is contended that merely because loan was given by cheques and even assuming without admitting there was subsequent letters of acknowledgment, that by KJ 3 itself will not amount to a debt arising out of the written contract within the meaning of Rule 2b(i) of the CPC. Advocate for the plaintiff relies upon a judgment of a single judge of this Court in the case of R.Kumar & Co. Vs. Chemicals Unlimited reported in 2001 Bombay 116. It is seen that facts of that case were different. The plaintiff’s suit was based upon goods sold, supplied and delivered by the plaintiff. The documents in this regard would by themselves form a written contract. This judgment is not an authority for a proposition that subsequent acknowledgment by itself would constitute a written contract. This can never be so because subsequent acknowledgment could also be acknowledgment in respect of a debt arising out of oral contract. There is a serious doubt about the maintainability of summary suit. In the circumstances, unconditional leave is granted to defend the suit. Summons for Judgment stands disposed off. (R.S.MOHITE,J.) KJ 4