NARAYAN JETHANAND Vs. ASAPURI VIJAY SAW MILL

JUDGEMENT

(1.) A short but interesting question which is raised in this appeal is with regard to the effect and interpretation of the provisions of Order 23, Rule 1 of the Code of Civil Procedure, 1908 ('Code' for short) on a subsequent suit for recovery of amount advanced.

(2.) The appellant who is the original plaintiff had instituted Summary suit No. 1556 of 1973 against the respondent- original defendant for recovery of an amount of Rs. 8,750/- in the City Civil Court at Ahmedabad. The plaintiff inter alia contended that he is the sole proprietor of business run in the name of M/s Hiramal Udhemal at Haripura, Asarwa, Ahmedabad. It is his case that as he was friendly with the defendant, he had given him short term loans on account of his stringent financial difficulties. On various occasions, the defendant went on taking loans from the plaintiff and he also made part payments. As per the case of the plaintiff, the defendant had taken the total amount of Rs. 38,000/- between the period from November 1970 and April 1972. The defendant had paid an amount of Rs. 31,000/-. It is also the case of the plaintiff that the defendant had given two cheques drawn on Dena Bank for Rs. 2,500/- to the plaintiff. Both cheques came to be bounced. Therefore, the plaintiff claimed an amount of Rs. 7,000/- as principal amount and Rs. 1,750/- as interest at the rate of 12% per annum in the suit.

(3.) The defendant resisted the suit by filing written statement at Ex. 24 and raised various contentions against the claim of the plaintiff in the suit. He inter alia contended that the plaintiff had instituted summary suit No. 2023 of 1971 against him On the same cause of action but the said suit was withdrawn unconditionally on December 17, 1971 by filing application Ex. 29 in that suit. It also pleaded by the defendant that the plaintiff had sought permission of the court for filing a fresh suit on the same cause of action which was rejected. It is, therefore, contended by the defendant that the suit is barred and not maintainable. The defendant also contended that he had paid full dues and the plaintiff is not entitled to claim any amount. Thus, the suit was fully resisted.