GE CAPITAL SERVICES INDIA Vs. SRIHARI RAO

JUDGEMENT

(1.) By this application the Defendant seeks leave to defend under Order XXXVII Rule 3(5) CPC. The contention of learned counsel for the Defendant/applicant is that this Court has no territorial jurisdiction to try the present suit as the agreement between the parties was entered into at Tirupati and the defendant is also residing at Tirupati. Thus, no cause of action has arisen at Delhi. Thus, the present suit is liable to be dismissed. Further, the suit is also barred by limitation as the installments were realized till December, 2005 and thereafter the cheques were not realized. Hence, for a cause of action which accrued in 2005, the plaintiff cannot file a suit in 2011. Even the promissory note was executed on 12th April, 2004 and, thus, even the suit based on the said promissory note is also beyond the period of limitation. Even taking the documents of the plaintiff on their face value, the contracted amount was Rs.31 lacs, however, the claim of the plaintiff is Rs.75 lacs in the present suit. Thus, claim not being on the basis of a written contract or an acknowledged liability, the provision of Order XXXVII CPC is not attracted and, hence, the defendant is liable to be granted leave to defend as triable issues are made out. Reliance is placed on Machelec Engineers and Manufacturers vs. M/s. Basic Equipment Corporation, 1977 1 SCR 1060.

(2.) Learned counsel for the plaintiff contends that the cause of action of the plaintiff is based on a written contract, the promissory note and the accounts of department. Since the last payment was due on 15th April, 2010, the present suit was filed in November, 2011 thus it cannot be held to be barred by limitation. The claim in the suit is based on the liquidated claim as the defendant was liable to pay interest @ 36% after the last payment. Further, the promissory note is an acknowledgment and a part of cause of action. Reliance is placed on GE Capital Services India vs. G. Neuromed Diagnostic Centre Pvt. Ltd., 2007 98 DRJ 74, H.B. Leasing & Finance Co. Ltd. vs. Mahavir Spinning Mills Ltd., 2008 153 DLT 293 and M/s. GE Capital Services India vs. Dr. Mohan Chaturbhuj Jhamvar & Ors., CS(OS) 203/2011 decided on 1st July, 2013.

(3.) Heard learned counsel for the parties.