TaxTMI 
TaxTMI 
2011 (12) TMI 767
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....th April, 1998 and the balance Rs.8 lakhs by cheque dated 14th April, 1998. 4. According to the plaintiff, the defendant agreed to pay interest to the plaintiff at the rate of 15% per annum, on the said sum of Rs.10,00,000/- and in fact paid interest till the quarter ending 30th September, 2002, after deducting tax at source. A copy of the TDS (Tax Deducted at Source) certificate dated 12th November, 2003 is annexed to the affidavit in support of the Master's Summons. 5. The plaintiff allegedly acknowledged and admitted its liability to the plaintiff by issuing confirmation of accounts duly signed by the defendant. Copies of confirmation of accounts signed on behalf of the defendant for the period from 1st April, 2000 to 31st March, 2001 and 1st April, 2001 to 31st March, 2002 are annexed to the affidavit in support of the Master's Summons. The plaintiff claims that the defendant admitted and acknowledged liability to the plaintiff for Rs.10,33,213/- as on 31st March, 2002. 6. According to the plaintiff, in the statement of accounts sent by the defendant to the plaintiff, for the period from 1st April, 2002 till 31st March, 2003, the defendant wrongfully showed the....
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....ant may show cause against such application by affidavit. (b) Affidavit.-The affidavit shall state whether the defence alleged goes to the whole or to part only and (if so) to what part of the plaintiff's claim and shall deal specifically with all matters of fact. (c) Examination.-The Judge may, if he thinks fit, order the defendant or in the case of a Corporation any Officer thereof to attend and be examined upon oath or to produce any lease, deed-book or document or copy of or extract therefrom 6. Judgment unless good defence - Upon such application the Judge may, unless the defendant by affidavit or otherwise as the Judge may direct shall satisfy him he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, make an order refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff. 9. Leave to defend.-Leave to defend may be given unconditionally or subject to such terms as to giving security, or time, or mode or trial or otherwise as the Judge may think fit. 11. Rule 6 quoted above provides tha....
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.... 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 prove a defence. 13. In Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation reported in AIR 1977 SC 577, the Supreme Court quoted and affirmed the principles laid down in Sm. Kironmoyee Dassi (supra) for grant of leave to defend. 14. The question is whether the defendant has a good defence to the claim of the plaintiff to entitle the defendant to leave to defend. In the meanwhile, pursuant to the leave granted by this Court, the defendant has entered appearance and also filed a written statement. 15. By a letter dated 6th April, 2010, the defendant's Advocate informed the plaintiff's Advocate that he had entered appearance on behalf of the defendant on 1st April, 2010. Under cover of a letter dated 7th April, 2010, the defendant's Advocate forwarded to the plaintiff's Advocate, a copy of the written statement filed on behalf of the defendant. 16. Mr. Ashish Chakravarty appearing on behalf of the plaintiff submitted that the defendant has no defence to the claim of the pla....
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....een a Director of the company towards capital of the company is difficult to accept. The aforesaid defence is nothing but a sham defence. 24. Admittedly, no shares were issued to the plaintiff. There is not a whisper of whether provisions of the Companies Act, 1956 for raising and/or enhancement of capital of the defendant company had been complied with. It was for the defendant to disclose facts within the special knowledge of the defendant which the defendant has not done. 25. The bold allegation of contribution of Rs.10 lakhs towards capital of the company is wholly unsubstantiated. There is no cogent explanation for payment of interest, deduction of tax at source on interest paid and also for repayment of Rs.1 lakh by account payee cheque. 26. Mr. Banerjee has, however, also taken the defence of limitation, which is a good defence. Mr. Banerjee pointed out that on the face of the averments in the suit as also the affidavit in support of the Master's Summons, part payment of Rs.1 lakh was made by a cheque dated 18th June, 2004. The suit thus became barred by limitation on 18th June, 2007. The endorsement in the Writ of Summons issued to the defendants shows the date....
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....le, where immediate interlocutory relief or any leave of court is sought, whether for leave to file the suit with deficit court fee or for leave under Clause 12 of the Letters Patent, Order II Rule 2 of the Civil Procedure Code or any other provision of law and/or rules of procedure. In all other cases, the plaint would necessarily have to be filed in the centralized filing section. 34. Limitation would stop running the moment a plaint is filed in the centralized filing section. Once the plaint is filed in the computer section the plaintiff has no control over the same. A litigant cannot suffer for no fault of his own, just because of procedural delays in sending the plaint to the Master for the necessary endorsements in terms of Rule 4 of Chapter VII. 35. However, the question is whether the plaint was filed on 15th June, 2007. The stamp on the original plaint is supposed to reflect the actual date of filing and not the date on which the plaint was presented before the Master or any subsequent date, more so, when the issue of limitation is involved. 36. Pursuant to the directions of this Court, the Deputy Registrar (Court) of the Original Side reported that computer recor....