JUDGMENT - R.J. KOCHAR, J.:---The plaintiffs have prayed for a judgment and decree against the defendants ordering the defendants to pay to the plaintiffs the sum of Rs. 13,77,416.10 ps. and further interest at the rate of 15% per annum or at such other rate as this Hon'ble Court may deem fit on Rs. 8,78,453.20 from the date of the filing of the suit till payment and costs of the suit."

2. From the averments in the plaint the suit claim appears to have been based on goods sold, supplied and delivered by the plaintiffs to the defendants from time to time. By three letters dated 10th April, 1990, 15th April, 1992 and 10th April, 1993 addressed by the defendants to the plaintiffs, the defendants has stated that in their account books in the account of the plaintiffs during the year ended 31st March, 1990 a sum of Rs. 6,12,295.71 was due and similarly for the next two years i.e. year ending 31st March, 1992 and 31st March, 1993 an amount of Rs. 7,86,689.70 and Rs. 8,91,476.20 were shown due to them. By another document which is Form No. 16-A, i.e. a certificate of deduction of tax at source dated 24-4-1995, it was certified that an amount of Rs. 14,932/- was paid and deposited with the tax authorities on behalf of the plaintiffs. On the aforesaid basis, the plaintiffs sent a notice on 12th July, 1993 to the defendants for payment of the aforesaid amount mentioned in the three letters addressed by the defendants to the plaintiffs. There was no reply to the said notice. Failure to make payment of the aforesaid amount has given rise to the present suit.

3. The defendants on receipt of writ of summons entered their appearance to contest the suit claim. The learned Advocate for the plaintiffs have, thereafter, taken out the above summons for judgment for a decree on the basis that the suit claim was an ascertained, admitted and liquidated amount under the "accounts stated" to be implied as a written contract and that there was no defence of any nature available to the defendants.

4. In support of the summons for judgment, the plaintiffs have filed an affidavit of one Shri Ramesh Shah, partner of the plaintiffs firm. On behalf of the defendants an affidavit of Shri Sameer Shah, their partner, is filed. The plaintiffs have filed a rejoinder on 8th August, 2000.

5. Shri Doshi on behalf of the defendants has submitted that his clients are entitled to get unconditional leave to defend the suit as there are following triable issues.

i) Khatapete is not accounts stated and therefore, such a suit on the basis of the three letters addressed by the defendants to the plaintiffs is not maintainable. Those letters were only acknowledgements of the debt and no summary suit can be maintained on then basis of only acknowledgment of debt as it does not amount to an express written contract.

ii) The letters addressed by the defendants do not constitute a written contract :

iii) these letters are neither expressed or implied contract or terms to pay and therefore, no summary suit will lie.

iv) The suit is barred by limitation as it is filed on 31st March, 1998 for recovery of a debt on the basis of the 3 letters dated 10th April, 1990, 15th April, 1992 and 10th April, 1993. The suit is, therefore, clearly barred by limitation, says the learned Advocate for the defendants and the limitation which has already expired, cannot be extended.

v) The aforesaid three letters are mere acknowledgements and they are not properly stamped and, therefore, they cannot be used as evidence before the Court.

vi) The aforesaid three letters were sent by the signatory having no authority to do so.

6. Shri Doshi, therefore, submitted that evidence will have to be recorded on the point of limitation as also on the point of authority of the sender of the said letters. He has, therefore, prayed for an unconditional leave to defend. The learned Advocate has placed reliance on the following judgments:-

i) (1883 I.L.R. Vol. VIII Bom. page 194 (F.B.))1.

ii) (Balkrishna v. Jayashankar)2

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