Partly allowed

Ramlal H. Kankaria the Sole Proprietor of M/S. Ganesh Stone Crusher v. National Small Industries Corporation Ltd.

Bombay HC16 Jun 2014APP/5/2010

Case brief

AI extract

What is this about?

Appeal against an order granting leave to defend a summary suit for instalment default under a hire purchase agreement, conditionally upon deposit. The High Court upheld the order but granted unconditional leave for the disputed first three instalments.

What did the court decide?

Impugned order upheld except that unconditional leave is granted to the extent of Rs.64,000/-.

Ramlal H. Kankaria the Sole Proprietor of… — Contract and Commercial Disputes | Bombay HC (2014)

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app5.10

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Shiv

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.5 OF 2010 IN SUMMONS FOR JUDGMENT NO.168 OF 2008 IN SUMMARY SUIT NO.1595 OF 2002

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Ramlal H. Kankaria V/s. National Small Industries Corporation Ltd.

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...Appellant

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...Respondents

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Mr.Nitin Gangal a/w Mr. Vinayak Kumbhar i/b Ms. Namita Mestry for the Appellant.

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Mr.Madhusudan Nair i/b M/s. KPMC Legal for the Respondents.

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CORAM : S.J. VAZIFDAR & A.K. MENON, JJ. DATE : 16TH JUNE, 2014.

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P.C. :-

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This is an appeal against the order and judgment of the learned Single Judge granting the appellant leave to defend the above summary suit conditionally upon his depositing a sum of Rs.5,99,545/- with interest at 10% per annum within about four months. The learned Judge also granted the appellant an option to furnish unconditional guarantee of a Nationalised bank for the said

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amount.

The parties had entered into a hire purchase agreement under which the Appellant-Defendant was to pay higher amount in instalments indicated in the schedule thereto. The first instalment was payable on 1st December, 1991 and the last instalment was payable on 1st December, 1997. The bi-annual instalments were to be made during this period on 1st June and 1st December of each year. Each instalment was of Rs.21,732/-. There is no dispute that not a single instalment was paid.

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The contention that the claim is barred by limitation would apply at the highest, only to the first three instalments which fell due on 1st December, 1994, 1st June, 1995 and 1st December, 1995. This is in view of the acknowledgment in writing signed by the appellant dated 8th March, 1999. The signature is not denied. The question is whether it constitutes an acknowledgment or not. The translation furnished by the Respondent, we presume, is not accurate. We will also presume the Petitioner's translation to be correct. According to the Petitioner, the acknowledgment reads : “I have to receive payment. Moreover, I sincerely desire to make payment.” This acknowledgment is endorsed on the foot of an

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report which refers to the payment to be made including the then present payment status. The report stated that an amount of Rs.4.5 lacs plus interest was payable. Read in context, the learned Judge was justified in proceeding for the purpose of Summons for Judgment on the basis that the document constituted an acknowledgment in writing. The amount directed by the learned Judge to be deposited is not more than amount due to the Respondent even if the first three instalments are excluded. The quantum of the deposit, therefore, cannot be faulted.

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However, an arguable point has been raised in respect of first three instalments of the agreegate amount of Rs.64,000/-.

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In the circumstances, the impugned order is upheld in all respects except that to the extent of Rs.64,000/- unconditional leave is granted. The appeal is accordingly disposed off. There shall be no order as to costs.

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(A.K. MENON, J.) (S.J. VAZIFDAR, J.)

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Ramlal H. Kankaria the Sole Proprietor of M/S. Ganesh Stone Crusher v. National Small Industries Corporation Ltd.

Case brief

What is this about?

What did the court decide?

Ramlal H. Kankaria the Sole Proprietor of M/S. Ganesh Stone Crusher v. National Small Industries Corporation Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Coram

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