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1 - 10 of 13 (0.22 seconds)Daya Chand Uttam Prakash Jain And Anr. vs Santosh Devi Sharma on 1 March, 1997
In this context reliance has been placed by Mr. Valmiki Mehta, learned Senior counsel appearing on behalf of Plaintiff, on a decision rendered by S.N. Kapoor, J. in Daya Chand Uttam Prakash Jain & Another v. Santosh Devi Sharma, where it has been held that a summary suit predicated on an "acknowledgement" signed by one partner is maintainable and that such a document fully conforms to the rigours of a written contract. An acknowledgement witnesses the consensus ad idem between the parties as also a promise to pay back by consideration. I am in respectful agreement with the views of my learned Brother and find that they apply on all fours to the case in hand. In the present case I have before me not only a written acknowledgement of debt by Defendant No. 2 but as a complementary feature, several cheques aggregating to the sum of Rs. 1.90 crores. So far as cheques are concerned, the Negotiable Instruments Act stipulates that there shall be a presumption as far as consideration for their issuance is concerned. This aspect of the case has not been answered by the Defendants. Although there is no material available on the record to indicate that deliveries were not effected, I need not go into this question since it is not the Defendants case that the bounced cheques were in respect of another series of transactions. Moreover the plethora of documentary evidence admitting and assuming liability cannot be ignored.
Corporate Voice (P) Ltd. vs Uniroll Leather India Ltd. on 15 September, 1995
Punjab Pen House v. Samrat Bicycles Ltd., Corporate Voice (Pvt.) Ltd. v. Uniroll Leather India Ltd., and Beacon Electronics v. Sylvania and Laxman Ltd., 1998 (3) Apex Decisions (Delhi) 141." I may only add that if the transaction in question is covered by a single invoice or bill the party relying on it should be in a position to indubitably disclose that the adversary's attention was specifically drawn to the terms on the back of the bill, and that it consented to be bound to those terms by failing to lodge any demur. One must not lose sight of the reality that a person does not always read a bill or invoice from its start to its finish, especially the reverse side. Where the bill is preceded by a delivery challan which does not contain all the terms of the transaction, this presumption may be an exception. However, where there have been a series of transactions in respect of which identical terms are printed on the bill, especially where both parties are commercial entities, this presumption would become irresistible. In the case at hand, several supplies have been made and each one is covered by identical and replicated terms.
Beacon Electronics vs M/S. Sylvania & Laxman Ltd. on 8 January, 1998
Punjab Pen House v. Samrat Bicycles Ltd., Corporate Voice (Pvt.) Ltd. v. Uniroll Leather India Ltd., and Beacon Electronics v. Sylvania and Laxman Ltd., 1998 (3) Apex Decisions (Delhi) 141." I may only add that if the transaction in question is covered by a single invoice or bill the party relying on it should be in a position to indubitably disclose that the adversary's attention was specifically drawn to the terms on the back of the bill, and that it consented to be bound to those terms by failing to lodge any demur. One must not lose sight of the reality that a person does not always read a bill or invoice from its start to its finish, especially the reverse side. Where the bill is preceded by a delivery challan which does not contain all the terms of the transaction, this presumption may be an exception. However, where there have been a series of transactions in respect of which identical terms are printed on the bill, especially where both parties are commercial entities, this presumption would become irresistible. In the case at hand, several supplies have been made and each one is covered by identical and replicated terms.
Mechelec Engineers And Manufacturers vs M/S. Basic Equipment Corporation on 1 November, 1976
3. The next point is obviously whether the Defendant's liability towards the sums claimed in the summary suit, or any lesser sums, is apparent on the face of the record. The Court must eschew a minute investigation into the rival cases, and if there is reasonable doubt in its mind, if there is only a preponderant possibility in the veracity of the Plaintiff's claim, leave should be granted. The approach advocated by the Hon'ble Supreme Court in Mechalec Engineers & Manufacturers v. Basic Equipment Corporation, should be adhered to since the spectrum of possibilities has been spelt out in that judgment. These have been adumbrated in this celebrated judgment to comprise- " (a) If the defendant satisfies the Court that he has a good defense to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend, (b) If the defendant raises a trivial issue indicating that he has a fair or bona fide or reasonable defense although not a positively good defense the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend, (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defense, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defense to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security, (d) If the defendant has no defense or the defense set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend, (e) If the defendant has no defense or the defense is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defense to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defense". On the basis of these pronouncements, I am of the view that if the Court is presented with an acknowledgement of debt by the Defendant, no penumbra for speculation remains and the Plaintiff is entitled to leave to sign judgment.