( 1 ) THIS is defendant s application under Order 37, Rule 3 (5) read with Section 151 of the Code of Civil Procedure (for short "the Code") seeking leave to defend in a suit filed by the plaintiff for recovery of Rs. 10,13,870. 50 under Order XXXVII of the Code.

( 2 ) THE defendant after service duly put in appearance. On summons for judgment having been served on 26th April, 1994, the defendant on 6th May, 1995 applied for leave to defend.

( 3 ) THE plaintiff s objection that te application for leave to defend is notwithin limitation cannot be accepted and the same deserves to be repelled holding that the leave to defend has been soughtwithin the period allowed in law. While computing period of 10 days, either the day of service of summons or the day on which application is filed has to be excluded. Both days cannot be counted.

( 4 ) LEAVE to defend has been sought alleging that dispute between the parties in respect of the suit amount cannot be settled in summary proceedings. Defendant s letter promising to pay the balance amount always impliedly and expressly meant that the balance payment should be the correct amount supported with proof of vouchers. Plaintiff ra