1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.67 OF 2009 IN SUMMARY SUIT NO. 586 OF 2005 Jaswantlal M. Shah ....Plaintiff Versus Nakshatra Finlease P. Ltd. & Ors. ....Defendants WITH SUMMONS FOR JUDGMENT NO.68 OF 2009 IN SUMMARY SUIT NO. 448 OF 2005 Jaswantlal M. Shah ....Plaintiff Versus Imperial Petro Chemicals P. Ltd. & Ors. ....Defendants WITH SUMMONS FOR JUDGMENT NO.69 OF 2009 IN SUMMARY SUIT NO. 409 OF 2005 Jaswantlal M. Shah ....Plaintiff Versus Nakshatra Finlease P. Ltd. & Ors. ....Defendants WITH SUMMONS FOR JUDGMENT NO.70 OF 2009 IN SUMMARY SUIT NO. 408 OF 2005 M. J. International (Agro Chemical Division) ....Plaintiff Versus Nakshatra Finlease P. Ltd. & Ors. ....Defendants WITH SUMMONS FOR JUDGMENT NO.71 OF 2009 IN SUMMARY SUIT NO. 260 OF 2005 Jaswantlal M. Shah ....Plaintiff Versus Tirupati Films Exporters Importers Pvt.Ltd. & Ors. ....Defendants 2 WITH SUMMONS FOR JUDGMENT NO.72 OF 2009 IN SUMMARY SUIT NO. 258 OF 2005 Jaswantlal M. Shah ....Plaintiffs Versus Imperial Petro Chemicals P. Ltd. & Ors. ....Defendants WITH SUMMONS FOR JUDGMENT NO.73 OF 2009 IN SUMMARY SUIT NO. 255 OF 2005 M. J. International (Agro Chemical Division) ....Plaintiff Versus Imperial Petro Chemicals P. Ltd. & Ors. ....Defendants Mr. Ajay Panicker, Advocate for the Plaintiff. Mr. S. R. Doijode a/w. Ms. Falguni Thakkar and Ms.Tawna Nagpal i/b. Doijode & Associates, Advocate for Defendant No.3 in S/J. No. 67, 69 and 70 of 2009 and for Defendant Nos. 1 & 3 in S/J. No.68, 71, 72 & 73 of 2009. Mr. S. L. Shah i/b. M/s. Shah Legal for Defendant Nos. 1 & 4 to 7 in S/J. 67, 69 and 70 of 2009. CORAM : R. V. MORE, J. DATE : 25th NOVEMBER, 2009. P.C. : Heard learned Counsel for the respective parties. 2. The learned Counsel for the parties agree that the issue involved in all the summonses for judgment is one and the same and therefore, the same are being disposed of, by a common order. 3 3. The Summonses for Judgment are taken out by the Plaintiffs. The Defendants have also filed replies to this Summonses for Judgment seeking unconditional leave to defend. The facts in all the cases are similar. It is the case of the Plaintiffs that between the period from 1993 to 1995, they made investments of huge amounts in the Defendant No.1-Company of which Defendant Nos. 2 & 3 alongwith one deceased - Ramkrishnan Raheja were the Directors. It is further case of the Plaintiffs that the part of the amount invested is already refunded by the Defendant No.1-Company and the balance amount which is due to the Defendant No.1-Company is acknowledged in its Balance Sheet for few years. It is the further case of the Plaintiffs that apart from the acknowledgment of balance amount of dues in Balance Sheet, the Defendant No.3- Prem Ramakrishnan Raheja in his capacity of the Director on behalf of the Defendant No.1 has signed confirmation letters. The Plaintiffs also claim that they are the shareholders of the Company. The said Balance Sheets and confirmation letters are annexed to the plaint. In the above said facts and circumstances, the summary suits under Order 37 Rule 2 of the Code of Civil Procedure, 1908 are filed for recovery of balance amount of dues. The learned Counsel for the Plaintiffs submitted that the suits are maintainable under the provisions of Order 37 Rule 2 of the Code of Civil Procedure, 1908. He further submitted that the amount claimed under the suits are already admitted by the Defendant No.3-Prem Ramkrishan Raheja, who is the Director of Defendant No. 1 and therefore, prayed that the Summones for Judgment be made absolute. 4. The learned Counsel for the Defendants, per contra contested the suits. He submitted that the Balance Sheet cannot be considered as a contract between the parties. He further submitted that the alleged confirmation letters are forged one and therefore, the same cannot be relied upon. He also submitted that in all the suits filed against the Defendants, the Defendant No.3- Prem Ramakrishnan Raheja signed on similar confirmation letters and those letters at the request of the Defendants, have been kept in the custody of the Prothonotary and Senior Master. He relied upon the order dated 4 19th June, 2007 passed by the learned Single Judge in Summons for Judgment No.357 of 2005. 5. Having considered the rival submissions of the learned Counsel appearing for the respective parties and having gone through the plaints alongwith annexures, affidavits in support of the summonses for judgment and replies thereto filed by the Defendants, I am of the considered opinion, that rival issues have arisen in the present suits. 6. The provisions of Order 37 Rule 2 applies to the cases mentioned in Rule 2 of Order 37 which reads as follows: “(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:- (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising, (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.” 7. The learned Counsel for the Plaintiffs submitted that the Balance Sheet of Defendant No.1- Company can be termed as a written contract. The learned Counsel for the Defendants, on the contrary, relied upon the judgment of the Division Bench reported in 2009(1) Bom.C.R.453 in the case of S.P.Brothers Versus Biren Ramesh Kadakia, in this regard. The question before the Division bench in the said case was whether the TDS certificates can be 5 termed as a contract. In this case, the Plaintiff relied upon the TDS certificates as an acknowledgment by the Defendant within the meaning of section 35 of the Indian Evidence Act, 1872. The Division Bench found that neither the written contract between the parties is pleaded nor any document to that effect was placed on record and therefore, TDS certificate was not considered and thereafter, unconditional leave was granted. In order to bring the case within the ambit of provisions of Order 37 Rule 1 of the Code of Civil Procedure, 1908, the Plaintiffs must plead and rely upon the written contract between the parties. In my opinion, the Balance Sheet cannot be termed as a written contract between the parties. 5. So far as the confirmation letters are concerned, it is the case of the Defendants that the same are fabricated and forged. The Defendants produced the original confirmation letters in triplicate signed and forwarded by the Plaintiffs to the Defendants. If these confirmation letters are compared with the letter dated 16th August, 2002 at Exhibit “C” at page 14, then I find that the Defendants are justified in denying the authenticity and genuineness of the alleged letters of confirmation. 6. While considering the grant of leave to the defend, it is required to see whether there was a real or sham defence and whether the facts alleged by the Defendants, if established, would be a good defence. In the facts and circumstances of the case and having regard to the above defences, in my opinion, rival issues arises and therefore, unconditional leave to defend the suit is granted to the Defendants. The Defendants to file additional written statement within a period of eight weeks from today. Sd/- (R. V. MORE, J.)