1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. SUMMONS FOR JUDGMENT NO.168 OF 2008 IN SUMMARY SUIT NO.1595 OF 2002 National Small Industries Corporation Ltd., a company owned by Government of India registered under the Companies Act, 1956, having its registered office at Okhla Ind. Estate and Regional Office amongst others at Prestige Chambers, 3rd Floor, Kalyan Street, Masjid (East), Mumbai 400 009. .... Plaintiffs vs Ramlal H. Kankaria, the Sole proprietor of M/s.Ganesh Stone Crusher carrying on business from address at S.No.850, Main Road, Patoda, Post Patoda, Dt.Beed, Maharashtra ... Defendant Mr.Madhusoodanan Nair for the plaintiffs. Mr.Nitin V. Gangal for the defendant. CORAM: ANOOP V. MOHTA, J. DATE : 12th October, 2009 P.C.: Heard finally, by consent. 2 The plaintiffs have filed the Summary Suit on 8.2.2002 against the defendant for the recovery of a sum of Rs.5,99,545/- with further interest at the rate of 15% p.a. From 9.2.2002. The claim is arising out of defaults committed of the terms of the Hire Purchase Agreement between the parties, the last instalment was expired on 9.2.2002. 2 3 The case is based upon the admitted defaults and an acknowledgment of dues dated 16.06.2000 and an acknowledgment on the inspection report dated 8.3.1999. 4 The last instalment due under the Agreement was on 1.12.1997. The basic Agreement was entered into on 6.4.1990 for a period of 7.1/2 years (Seven and half years). As the defendant has acknowledged dues on 8.3.1999, the Suit as filed on 7.2.2002, is within the period of limitation. 5 The defendant did not file vakalatnama/appearance within the prescribed period of limitation. There are number of Suits filed by the plaintiff through the different Advocates. A Division Bench of this Court has already observed that filing of such Summons for Judgment after a period of six months is not barred. If case is made it cannot be dismissed. This Court has jurisdiction as per the Agreement between the parties. There is no denial to the Agreement and/or default. The dispute with regard to the qualities of the machineries, even if any, now as raised is not genuine and bonafide specially after acknowledging the liability and signed accordingly in the year 1999 and 2000 itself. 6 The learned counsel appearing for the defendant, however, relied on a judgment in Natinal Small Industrial Corporation Ltd. v. Takdir Singh, CDJ 2005 DHC 300, and contended that starting point for limitation in such Hire Purchase Agreement is the first instalment itself. Therefore, the cause of action for the 3 recovery of that instalment accrue when the instalment become due. Therefore, contended that the Suit, based upon the last instalment and the alleged acknowledgments, therefore, is barred by limitation. The relevant observation is as under: “Thus, we feel that the learned Trial Judge was wrong in saying that the cause of action accrued for the entire amount of instalments from the date of execution of the agreement. To make things clear, we feel that cause of action accrued separately with regard to each and every instalment only when that particular instalment became due and the period of limitation for that particular instalment will be three years commencing from the date that particular instalment became payable. This is how the period of limitation is to be computed and, if it is so computed, the cheques in question and so also the letter written by the respondent may turn out to be relevant requiring reconsideration. Of course, we are not returning any finding that the cheques and the letter in question would extend the period of limitation. We are leaving to the learned Trial Judge to consider this aspect.” 7 However, considering the same finding and facts of the present case, where there is an admitted acknowledgment of liability within a a period of three years and as the acknowledgment was validly made before the expiration of the period of limitation, I am of the view that no defendable case is made out by the defendant. 8 Hence the following order: ORDER (1)The defendant is granted conditional leave to defend the Suit on depositing a sum of Rs.5,99,545.60 with further interest at 10% p.a. On or before 04.02.2010. (2)The defendant, however, shall be at liberty to furnish on or before 4 04.02.2010 an unconditional guarantee of a Nationalised Bank to the satisfaction of the Prothonotary and Senior Master for the said amount with interest at the rate of 10% p.a. The guarantee shall be valid pending the final judgment in the Suit and for a period of 12 weeks thereafter. (3)On such deposit being made, the Suit be transferred to the List of Commercial Causes. (4)The defendant shall file its written statement within a period of six weeks thereafter. Discovery and inspection to be completed within eight weeks thereafter. (5)In the event of the amount being deposited as aforesaid, the Prothonotary and Senior Master to deposit the said amount in a Nationalised Bank initially for a period of one year and thereafter for equal successive periods till the disposal of the Suit. (6)On the failure of the defendant to deposit the aforesaid amount or furnish the guarantee as aforesaid, a liberty to the plaintiff to apply for further orders. (7)The Summons for Judgment is disposed of in the above terms. There shall be no order as to costs. (ANOOP V. MOHTA, J.)