( 1 ) THIS order shall dispose of an application moved by defendants under Order 7 Rule 11 Code of Civil Procedure for rejection of plaint. Briefly the facts of the case are that plaintiffs have filed the present suit for recovery of rs. 44,19,573/- alongwith pendente lite and future interest at the rate of 27% per annum. Defendant No. 1 is a proprietorship concern of defendant No. 2. Plaintiffs on the asking of defendant No. 2 provided to defendant no. 1 Inter Corporate Deposit (hereinafter referred to as icd) loan for a period of 90 days at different times and rates of interest. The first ICD of Rs. 10 lakhs was advanced on 2/08/1994 for a period of 90 days with interest at the rate of 24% per annum. This loan was paid back with interest on 1/11/1994. Another icd for Rs. 10 lakhs was advanced on 9/11/1994 for 90 days with interest at the rate of 24% per annum. The third ICD for Rs. 15 lakhs was advanced on 16/11/1994 for 90 days. On 17/1/1995, post-dated cheques for Rs. 88,767. 00 and Rs. 59,175. 00 towards interest on third and second ICDs respectively were issued by defendants. Two cheques for principal amount were also issued. The cheques for interest were encashed whereas the cheques for the principal amount were dishonoured. At the request of defendants ICDs were rolled over and two demand promissory notes were executed on 7/02/1995 and 15/02/1995 for Rs. 15 lakhs and Rs. 10 lakhs respectively with interest at the rate of 24% per annum. The amount of rolled over ICD for rs. 10 lakhs was paid back with interest on 9/05/1995. The other ICD of Rs. 15 lakhs was again rolled over for 90 days with interest at the rate of 25% per annum. A receipt and a demand promissory note in this respect was executed by defendants on 16/05/1995. Another ICD for rs. 10 lakhs was advanced to defendants for 90 days with interest at the rate of 25% per annum. A receipt and demand promissory note in this respect were executed on 20/5/1995. The plaintiffs have averred that as on 17/08/1995 a sum of Rs. 26,46,712/~ was due and outstanding against the defendants. Out of this, a sum of Rs. 10,61,644. 00 was paid by cheque whereas another sum of Rs. 85,068. 00 towards interest upto 31/08/1995 was received by transfer leaving a debit balance of Rs. 15 lakhs. Defendants executed demand promissory note with receipt dated 18/08/1995 for the debit balance of rs. 15 lakhs with interest at the rate of 27% per annum for 90 days. On 31/08/1995, another sum of Rs. 5 lakhs was advanced as ICD to defendants with interest at the rate of 27% per annum. Thus as on 31/08/1995, principal amount due against defendants was Rs. 20 lakhs. On 31/08/1995, defendants executed a receipt and demand promissory note for Rs. 20 lakhs with interest at the rate of 27% per annum for 90 days i. e. from 31st august,1995 to 30/11/1995. The plaintiffs have alleged that when defendants were called upon to meet their liability, they under the cover of their letter dated 4/09/1995 gave three post-dated cheques i. e. cheque dated 14/11/1995 for Rs. 99,863. 00, dated 4/12/1995 for Rs. 33,287. 00 and another cheque dated 4/12/1995 for Rs. 5 lakhs towards part payment of their liability. According to plaintiffs, defendants requested on or around 13/11/1995 that cheque of Rs. 99,863. 00 dated 14/11/1995 be not presented to the bank as they had not been able to make arrangements for the same. Similar request was received on 3/ 4/12/1995 regarding two other cheques. The cheque dated 14/11/1995 for rs. 99,863/- was ultimately encashed on 12/12/1995. The other two cheques, however, were not honoured. The plaintiffs case is that payment of rs. 99,863/- by an account payee cheque was a payment in the hands of defendants towards part payment of their admitted liability. As such, the said payment extended the period of limitation.

( 2 ) THE suit was insituted on 11/12/1998. Summons of suit were issued to the defendants. The defendants, however, instead of filing the written statement f