2004 Supreme(Bom) 651

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
SICOM Limited .... Plaintiffs.
Versus
Harjindersingh others.... Defendants.
Summons for Judgment No. 521 of 2002 in Summary Suit No. 372 of 2002, decided on 23-4-2004.
Advocates appeared :
V.R. Dhond with Birendra Saraf i/b. A. Mehta Laljee Co., for plaintiffs.
Jaideep Mitra i/b. T.N. Tripathi, for defendants Nos. 1 to 3.

Headnote:Bankers Book Evidence Act, 1891 - Section 4 - Entries in book of account - Proof of - Applicability of Information Technology Act, 2000 - Suit for recovery of loan - Plaintiffs neither Bankers nor Banking Institution - Amended provisions of Act not applicable - Amended provisions not attracted to Books of Accounts maintained by plaintiff in regular course of business manually. - The argument that requires to be considered is that the statement of claim produced on behalf of the Plaintiffs cannot be relied upon for non-compliance of certification as required by the amended provisions of the Information Technology Act, 2000. In the first place, as rightly contended on behalf of the plaintiffs, the said provision would apply to the "bankers" books of accounts". There is nothing on record to suggest that the plaintiffs are bankers, or a banking institution. In any case the statement, which has been produced on behalf of the plaintiffs is not a statement of accounts from the books of accounts maintained by the plaintiffs. Assuming that the said provision was applicable, that would apply only to print-outs taken of the entry or a copy of print out from the accounts maintained with the aid of computer and not to books of accounts maintained in regular course of business manually. Moreover, it is seen that the statement is merely in a tabular form and the figures have been extracted from different books of accounts maintained by the plaintiffs in regular course of business.

       Land Acquisition Act, 1894- Clause 12 - Summary suit - Leave under. - Where dues of plaintiff were due and payable by defendants to plaintiffs at Mumbai deeds of guarantee as well as term loan, corporate loan and short term loan agreement specifically stipulated and provided that Mumbai Court shall be having exclusive jurisdiction to try and decide, the disputes, leave under clause 12 is rightly granted.

       Contract Act, 1872 - Section 128 - Suit for recovery of loan - Against guarantors - Lia- bility of guarantor - Suit is maintai- nable - No suit instituted against principal debtor - Yet suit against guarantor permissible. - Court finds no substance in the argument as canvassed on behalf of the defendants that since no suit is instituted against the principal debtor, the present suit is impermissible, or, for that matter, that the plaintiffs have failed to enforce the security against the principal debtor company. Reliance has been rightly placed on the decision of the Apex Court in the case of Bank of Bihar Ltd. v. Dr. Damodar Prasad, reported in AIR 1969 SC 297.

        Bombay High Court Letters Patent - Clause 12 - Grant of leave - For filing suit in High Court - Order granting leave operating - Not assailed before appropriate forum - No application moved for setting aside same - Dues of plaintiffs - Payable by defendants at Mumbai - Deeds of guarantee as well as term loan, the deed of mortgage in respect of corporate loan specifically stipulated, if any dispute arises for enforcement of agreement, Court at Mumbai have exclusive jurisdiction - No substance in rejection - Leave under Clause 12 rightly granted in favour of plaintiff. - It is however not in dispute that the plaint has been entertained pursuant to leave granted by Court predecessor under Clause 12 of the Letters Patent. In the first place, that order is still operating and has not been assailed before the appropriate forum nor any formal application has been moved for setting aside the same as is now argued on behalf of the defendants. In any case, Court find no substance in the argument that leave under Clause 12 has been wrongly granted in this case, leave has been granted as is rightly contended on behalf of the plaintiffs, because the dues of the plaintiffs were due and payable by the defendants to the plaintiffs at Mumbai, the deeds of guarantee as well as the term loan, the deed of mortgage in respect of corporate loan and the short term loan agreement specifically stipulated and provided that, if any dispute arises between the parties as regards the enforcement of the said agreement the Courts in Mumbai shall have exclusive jurisdiction to try and deal with such dispute and also because the said moneys were repayable in Mumbai as was agreed between the parties and recorded in the agreements in question. If that is the basis on which leave under clause 12 has been granted and which basis cannot be doubted, rather the same are made good from the record before this Court, there is no substance in the objection under considerati

       Contract Act, 1872 - Section 128 - Recovery of loan - Suit for against guarantors - Limi- tation for - Continuing guarantee - Suit not barred by limitation. - The guarantee is seen to be a continuing guarantee and the undertaking by the defendant is to pay any amount that may be due by the company at the foot of the general balance of its account or any other account whatever. In the case of such a continuing guarantee, so long as the account is a live account in the sense that it is not settled and there is no refusal on the part of the guarantor to carry out the obligation, Court does not see how the period of limitation could be said to have commenced running.

       The dictum of the Apex Court, referred to above, squarely applies to the fact situation of the present case, because there is express condition in the guarantees executed by the defendants agreeing for continuing guarantee and undertaking to pay the amounts due and payable by the principal debtor company. In the circumstances, Court finds no substance in this argument