KALYANJI HANSRAJ Vs. KAMINI A AGRAWAL

JUDGEMENT

(1.) RULE. Returnable forthwith. Heard.

(2.) THESE 39 applications arise out of one consolidated order dated 27th February, 1989 passed by Shri R. G. Khedkar, the learned Judge, City Civil Court, Bombay in summonses for Judgement Nos. 1118 to 1956 of 1989 dated 18th October, 1988 taken out in Summary Suits Nos. 2355 to 2393 of 1988 by the respective plaintiffs (respondents herein ). The applications raise interesting and somewhat complicated issues.

(3.) THE plaintiffs, who are allegedly creditors, filed the 39 suits on 22nd March, 1988 under order XXXVII of the Civil Procedure Code for different amounts due to them alongwith interest upto the date of the filing of the suits at the stipulated rate on the basis of documents stated to be receipts stamped with 20 Paisa revenue stamp. An order of attachment before judgement was granted by the learned Judge Smt. Upasani on 25th March, 1988 on the application made on behalf of the plaintiffs as a result of which a residential flat and a shop belonging to the defendants was attached. Summonses for judgement dated 18th October, 1988 were taken out at the instance of the plaintiffs who also filed their affidavits in support. The contesting defendants, i. e. , the two partnership firms and their respective partners except one common partner Shri Jaisingh K. Ved, filed detailed and identical affidavits challenging Summonses for judgement, the affidavit running into 24 typed pages. Shri Jaisingh K. Ved, one of the common partners in the two firms, however, admitted the liability on behalf of the partnership firms. The arguments were heard at length, but ultimately final decrees were passed by the learned Judge against the aforesaid partner in all the 39 suits following the Supreme Court decision in (M/s. Mechalec Engineers and Manufacturers v. M/s. Baste Equipment Corporation) A. I. R. 1977 S. C. 577. Final decrees were also passed against the two partnership firms observing that the said partner was the agent of the firms and that when he admitted the liability, the decree against the firms could and should be passed following the decision in (M/s. Fatechand Khubchand v. Firm National Tiles Co.) A. I. R. 1940 Sind 19. In their cases, leave to defend was naturally refused. As regards other contesting defendants, it was observed that receipt of principal amounts was admitted vide paragraphs 13 and 26/27 of the affidavits. There was in fact no scope for defence in view of one partners admission of the liability. However, referring to the Supreme Court decision in (Manekchand Mohanlal Poonawala v. Shah Bhimji Kundanmal and Co.)the learned Judge granted them leave to defend as an act of mercy on the condition that principal amounts were deposited in the Court within 4 weeks. In two cases where the original receipts on the basis of which suits were filed were not traceable, the Summonses for judgement were allowed to be with-drawn at the instance of plaintiffs. Main defence disclosed in the affidavits pertain to the very maintainability of the suits as summary suits under order XXXVII, rule 2 on various grounds. There was of course an attempt to show that on merits the defendants had a good case and that the defence was not frivolous or vexatious. Following the Supreme Court decision in (Ramji Dayawala and Sons (P) Ltd. v. Invest Import) A. I. R. 1981 S. C. 2085 and the decision in Manekchand v. Shah Bhimji LXXI B. L. R. 370, the learned Judge drew adverse inference from the fact that the defendants had not produced their books of account. He was also convinced of the genuineness of the plaintiffs claims on the basis of averments made by the defendants in paragraphs 13 and 26 of their affidavits and the categorical admission of the liability by one of the partners. Objection pertaining to the jurisdiction of the Court to try the suits as summary suits under order XXXVII appeared to him to be technical which, according to him, was the language of the weak. He referred to such objections in paragraph 11 to 18 and rejected the same as objections raised to defeat the ends of justice. The other objections such as the creditors were carrying on money lending business but did not possess moneylenders licences, that there were no formal agreements for charging of interest, that the amounts paid by the defendants were not adjusted towards the principal amounts were dealt with and rejected by him in paragraphs 19 to 26 of the order. Ultimately, as stated in the earlier part of this paragraph the learned Judge passed final decrees against the two firms and the partner Shri Jaisingh K. Ved and granted leave to defend to the remaining partners on deposit of full principal amounts. As already stated, in two cases Summonses for judgement were allowed to be withdrawn at the instance of the plaintiffs as they were not able to produce original documents on the basis of which suits were filed.