IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 324 OF 2003 NO. 324 OF 2003 NO. 324 OF 2003 IN IN IN SUMMONS SUMMONS SUMMONS FOR JUDGMENT NO.240 OF 2001 FOR JUDGMENT NO.240 OF 2001 FOR JUDGMENT NO.240 OF 2001 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.6386 OF 1999 SUIT NO.6386 OF 1999 SUIT NO.6386 OF 1999 Central Bank of India, a body ) Corporate and Constituted under the ) Banking companies (Acquisition and ) Transfer of undertaking) Act, 1970 ) having its office at M.B.O. M.G. Road, ) Fort, Mumbai 400 023. ) .. Appellants Versus. M/s. Vignesh Implex Pvt. Ltd., ) a Company incorporated under the ) provision of the Companies Act, 1956 ) and having its Registered Office at ) A-2/416, Shah & Nahar Industrial Estate,) S.J. Marg, Lower Parel, Bombay -400 013 ) .. Respondents Sri H.N. Thakore i/by M/s. Thakore Jariwala & Associates for the Appellants. None for Respondents. CORAM CORAM CORAM :Sri R.M.S. KHANDEPARKAR & :Sri R.M.S. KHANDEPARKAR & :Sri R.M.S. KHANDEPARKAR & Sri Sri Sri P.B. MAJMUDAR, JJ. P.B. MAJMUDAR, JJ. P.B. MAJMUDAR, JJ. DATE DATE DATE :28th April, 2008. :28th April, 2008. :28th April, 2008. ORAL ORAL ORAL JUDGMENT (PER SRI R.M.S. KHANDEPARKAR,J.) JUDGMENT (PER SRI R.M.S. KHANDEPARKAR,J.) JUDGMENT (PER SRI R.M.S. KHANDEPARKAR,J.) :- 1. Heard the learned Advocate for the Appellant. None present for the Respondents. This appeal arises from an order dated 18th December 2002 passed in Summons for Judgment No.240 of 2001 in Summary Suit No.6386 of 1999 whereby leave to defend the suit has been rejected and the Respondent’s suit has been decreed. 2. The impugned order is sought to be challenged on : 2 : 2 : 2 : various grounds. It is not necessary to deal with all those grounds and suffice to refer only one ground namely that in the facts and circumstances disclosed in the plaint, the proceeding in the nature of summary suit was not maintainable under Order XXXVII of the Code of Civil Procedure, 1908 and this aspect has not at all been considered by the learned single Judge while decreeing the suit and refusing the leave to defend the suit. 3. The Respondents-Plaintiffs have filed the suit for money decree on the ground that the Appellants-defendents have been refusing to release an amount deposited with the Appellants in the fixed deposits by the Respondents-plaintiffs. The facts as stated in the plaint and which the learned single Judge has taken into consideration in the impugned order are that according to the Respondent in October 1989, a letter of credit payable at site was issued by the National Westminister Bank, U.S.A. drawn in favour of the plaintiffs and the plaintiffs negotiated the documents under the said letter of credit through the Appellant-bank. The Appellant-bank purchased the Foreign Bill by debiting the L.C. account as well as collected the bank charges in that transaction. The Appellants had paid an amount of Rs.65,000/- towards purchase of the Foreign Bill and according to the : 3 : 3 : 3 : Respondents-plaintiffs the said amount was realised by the Appellant-bank. The Respondents wanted to avail of the packing credit facility from the Bank of Baroda and for availing the same, they required "No Dues Certificate" from the Appellant-bank. When they approached for such certificate from the Appellant Bank in the year 1997, according to the Respondents, the Appellant Bank insisted that an amount of Rs.2,90,000/- should be kept in a fixed deposit with the Appellant Bank under a general lien till the discrepancies in respect of the said L.C. amount are resolved. 4. As the Respondents were in urgent need of such Certificate, they agreed for such deposit with the Appellant-bank. Thereafter, when the Respondents asked for refund of the amount deposited with the Appellant-bank, the latter refused to pay the amount on the ground that the dispute in relation to L.C. amount was not yet resolved. Contending that the Appellants were not entitled to withhold the said amount on the ground that the lien was obtained for the year 1990 in relation to the transaction and the claim for the same was time barred and, therefore, the suit came to be filed. 5. The learned single Judge held that the lien was created in the year 1997 in relation to the time barred : 4 : 4 : 4 : claim. He refused the leave to defend and decreed the suit ignoring the fact that the Summary Suit was not at all maintainable. 6. Indeed, no elaborate discussion on this aspect is required and bare reading of the below quoted three paragraphs in the plaint would genuinely raise the doubt as to whether the proceeding in the nature of summary suit is maintainable. The paragraph Nos.8 to 10 of Summary Suit No.6386 of 1999 reads thus:- "8. The Plaintiffs submit that since nothing was due and payable by the Plaintiff to the Defendant Bank, the Plaintiff requested the Defendant Bank for issue of the "NO DUES CERTIFICATE". The Plaintiffs say that in reply to the same Defendant Bank intimated for the first time after lapse of about more than eight years that said Export Bill Purchased under the L.C. (tested and confirmed) in October, 1989 remains outstanding and unless the proceeds are released the "NO DUES CERTIFICATE" could not be issued. 9. The Plaintiffs submit that since 1989 the Defendant Bank never sought any acknowledgment of the alleged debt nor have they even intimated to the Plaintiffs regarding the non-realisation of the said bill purchased by the Defendant Bank under the LC duly tested by the state Bank of India. 10. The Plaintiffs submit that for issue of the "NO DUES CERTIFICATE", the Defendant Bank compelled the Plaintiff to keep Fixed Deposit to the tune Rs.2,90,000/- under a general lien with the Defendant Bank till the time discrepancies in respect of the said L.C. amount is resolved." : 5 : 5 : 5 : 7. Even assuming that the Summary Suit is maintainable, there was no justification for rejection of leave to defend the suit ignoring the fact that the suit was filed in the year 1999 in relation to the transaction which had taken place in the year 1987. Whether the claim was still alive in one form or the other, and whether there was an acknowledgement of liability in one form or other, are not the mere questions of law and the same require necessary evidence to be produced by the parties, and only thereafter it can be decided whether the claim is barred by law of limitation or not. Without going into those issues and without affording any opportunity to the parties of being heard on those issues, the learned single Judge has rejected the leave to defend and has decreed the suit. 8. For the reasons stated above, therefore, without going into the other details and without expressing any opinion as to whether the suit in the nature it was filed was maintainable or not and leaving all the issues open, the impugned order is hereby set aside and the matter is remanded to the learned Single Judge to decide the issue pertaining to grant of leave regarding maintainability of the suit in the nature it was filed. Order accordingly. No order as to costs. Appeal stands disposed of. : 6 : 6 : 6 : (P.B. MAJMUDAR, J) (R.M.S. KHANDEPARKAR, J)