AJAY SHAW Vs. HDFC LIMITED AND ORS

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit impugning the judgment of the Trial Court dated 24.8.2016 by which trial court has dismissed the leave to defend application filed by the appellant/defendant No. 1 and has decreed the suit for recovery of moneys filed by the respondent no.1/plaintiff for a sum of Rs. 20,07,233/-.

(2.) A reading of the plaint shows that the suit is not based on a dishonoured cheque or a written agreement containing the liquidated amount which is the suit amount. The suit plaint shows that the suit is filed on the ground that the term loan was granted to the appellant/defendant No. 1 and the appellant/defendant No. 1 executed a Loan Agreement on 29.01.2011. The total disbursement of Rs.18.40 lacs was made and which was repayable in equal monthly installments every month. Respondent no.1/plaintiff pleaded default in paying of the loan amount and the amount claimed in the suit is actually the amount which is the balance due at the foot of the account inasmuch as the appellant/defendant no.1 paid certain EMIs but defaulted in payment of certain other EMIs. Therefore the amount claimed in the suit is as a result of various debit and credit entries, and the balance at the foot of this account is the amount which is claimed by the respondent no.1/plaintiff in the suit.

(3.) An Order XXXVII CPC suit lies if the suit is based on a dishonoured cheque or an amount which is claimed in the suit arising as a liquidated amount specifically so stated as a liquidated liability in the written instrument including a guarantee. The suit amount claimed is not a liquidated amount payable under an agreement because the suit amount is the amount which is different than as contained in the loan agreement as it is the balance at the foot of the account as a result of various debit and credit entries over a long period of time. The subject suit therefore is not maintainable under Order XXXVII CPC and as so held by this Court in the judgment in the case of IFCI Factors Ltd. Vs. Maven Industries Ltd. & Ors., 2015 225 DLT 32. The relevant paras of this judgment in the case of IFCI Factors Ltd. are paras 9 to 16 and these paras read as under:- <FRM>JUDGEMENT_458_LAWS(DLH)7_2018_1.html</FRM>