*1* 31-sj-418-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj SUMMONS FOR JUDGMENT NO.418 OF 2009 IN SUMMARY SUIT NO.887 OF 2009 Rajeshkumar T. Jain .. Plaintiff V/s. Kamleshkumar M. Shah .. Defendant Mr. S.S.Jain, for Plaintiff. Mr. M.D.Mali i/b. M.D.Mali & Co., for Defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd November, 2010. P.C. 1 Heard both the sides. 2 Plaintiff claims to be a HUF as more particularly set out in para 1 of the plaint and the Karta of this HUF has filed suit against Defendant who is proprietor of M/s. Kamleshkumar Melapchand Shah. He carries on business of Textile goods at the address mentioned in the cause title of the plaint. In the nature of transaction of investing monies on interest between the parties which has been set out in para 3 of the plaint, certain amounts have been sent by the cheques. The details of which also set out. This amount is sought to be repaid in part payment by *2* 31-sj-418-09 certain cheques but the balance sum of Rs.1,08,331/- has been stated to be outstanding. Reliance is placed upon the averments made in paras 3 and 4 of the plaint, and, particularly, the entires in the profit & loss accounts for the year ending 31st March, 2006. There is specific contention raised in paras 3 to 5 that these accounts were filed by the Defendant with the Income Tax Department through his Chartered Accountants. They bear signatures of both the C.A. as well as Defendant. Based on this acknowledgment of liability and the balance which is confirmed at the foot of the accounts between the parties that the instant summary suit, has been filed to recover sum as stated in the balance sheet with interest as per the particulars of claim. 3 The defence raised by the Defendant is that the Plaintiff was working with the Defendant as a Manager. He had maintained all books and was incharge of the business. The business of the present Defendant as well as his brother was looked after by the Plaintiff. There are several suits filed against the Defendant by the Plaintiff and his brother. The Plaintiff has gained confidence of the Defendant and his brother. He was maintaining all accounts, he used to brief the C.A. and, therefore, sought some cash withdrawals which have been permitted from time to time, that he has no right to make a claim against Defendant, on the basis of the *3* 31-sj-418-09 entries in the balance sheet. It is stated that the suit is not maintainable as summary suit, because this balance is not confirmed at the foot of the accounts, but are entries in the books of account which are inserted to facilitate cash withdrawals, therefore, this cannot be made basis for a summary suit. 4 There is an affidavit of rejoinder which has been filed and in which it is stated that the balance sheet is admitted so also the profit and loss account and in any event would constitute an acknowledgment within the meaning of section 19 of the Limitation Act, 1963. Further, the suit which is maintainable as a summary suit on the basis of the accounts and the balance duly confirmed at the foot thereof. 5 Having heard the learned counsel at some length and on perusing the plaint and annexures thereof, so also all affidavits on record, I am of the opinion that there is no substance in the objection that the instant suit is not maintainable as summary suit. The provisions of Order XXXVII are clear. The suit i.e. presently filed claims a sum which is due and payable under the foot of an account which sum has been confirmed by the parties. The suit, therefore, clearly falls within the meaning of Order XXXVII Rule 3 Sub-rule 2 [sub-clause (b)]. *4* 31-sj-418-09 6 The above principle is reiterated in the Full Bench Decision of this Court reported in AIR 2004 Bombay 186 SICOM Ltd., v/s. Prashant S. Tanna and the subsequent Full Bench Decision reported in 2007 (4) Mah. LJ 517 (Jyotsna K. Valia v/s. T.S.Parekh and Co., (see para 27, 28, 29). Applying the ratio of these decisions to the facts of the present case, it can be held that the instant suit is maintainable as a summary suit. 7 Further objection is that there were no transaction between the parties and the fact that the Defendant had employed the Plaintiff as Manager, has been established. At this stage and merely by this, it is difficult to hold that the balance sheet, which has been duly filed by the Defendant with the Income Tax Authority certifying the balance of the outstanding loan is false and the entries therein cannot be relied upon. At this stage when the balance is confirmed at more than one place by the Defendant himself and all details as to how the Income Tax Authority has been informed about this outstanding loan and the transaction are set out, then, in the absence of any denial in this behalf, the Defendant will have to be put to some terms which is by depositing certain amounts, that an opportunity can be given to prove the case set out in the Affidavit in reply. *5* 31-sj-418-09 8 Hence, the following order:- (i) On the Defendant depositing in this Court a sum of Rs.50,000/- within a period of eight weeks from today, there will be conditional leave to defend, and if the amount is deposited, the suit shall transferred to the list of Commercial Causes with usual directions to file Written Statement, discovery and inspection. (ii) In default, all further consequences of law shall follow. (S.C. Dharmadhikari, J)