YUM! RESTAURANTS INDIA PRIVATE LIMITED v. A.N. TRADERS PRIVATE LIMITED & Ors.

10. As had been reflected, the amount due under the MoU was Rs. 20,46,16,045/-, to which the petitioner-plaintiff had added pre-Suit interest of Rs. 6,98,85,301/-. However, evidently the Suit has been filed for a total amount of Rs. 24,95,01,346/- and the court fee has also been paid on the said amount.

11. In paragraph 39, when it is reflected to be as a principal amount, it only implies that the Suit amount is Rs. Rs. 24,95,01,346/- which is actually inclusive of interest and is not confined to the amount admitted under the MoU. The term principal amount refers to the amount which is being claimed in the Suit on which the subsequent pendente lite and future interest has been asserted. It needs no further explanation that the amount on which the Suit has been filed has been termed as principal amount. Therefore, there is no error apparent in the referral of the Suit amount as the principal amount and this aspect needs no clarification.

12. The third correction sought is in respect of the amount mentioned in Paragraph 35.

13. It has been observed in Paragraph-35 of the Judgment dated 28.02.2024 that “In the present case, the plaintiff has alleged an MoU dated 22.07.2016, mentioning an amount of Rs. 20,46,16,045/- but has also claimed an adjustment of Rs. 2.[5] crores out of the total amount leaving a balance of Rs. 70,96,16,045/- (Sic).”

14. The amount of Rs. 70,96,16,045/- is evidently a typographical error as the amount should have been Rs. 17,76,16,045/-. The said error being typographical in Paragraph-35 stands corrected to Rs. 17,76,16,045/-.

15. The next error has been highlighted is in Paragraph-14 of the Judgment dated 28.02.2024, wherein it has been recorded that a payment of Rs. 2.[5] crores was made by the defendant Nos. 1 and 2, but in fact, it had been paid by SFIPL on behalf of the defendant Nos. 1 and 2. It is hereby clarified that amount of Rs. 2.[5] crores had been paid by SFIPL in discharge of the liabilities of the defendants towards the petitionerplaintiff. The said aspect is hereby clarified.

16. The next grievance of the petitioner-plaintiff is with respect to Paragraphs 11, 28, 29, 36 and 37 stating that extensive reliance has been placed on the terms of the 2015 BTA, which had already lapsed.

17. The observations made in the Paragraphs-11, 28 and 29 of the Judgment dated 28.02.2024 are infact, the submissions of the parties which have recorded, and not the findings of the Court. No corrections are warranted on this account.

18. The observation made in Paragraph-36 of the Judgment dated 28.02.2024 is the observation of the Court which reads as under: - “36. The second ground on which leave is sought by the defendants is the BTA, which was entered into between the defendant Nos. 1 and 2 and SFIPL, which according to them, they had been forced to enter by the plaintiff. According to defendants, all their obligations were to be paid to the plaintiff by SFIPL. However, a payment of Rs.82,44,16,812/- out of Rs.

19. In this regard, it is hereby clarified that the BTA, in fact, was entered into between the defendant No. 1 and 2 and SFIPL on 15.05.2015, though it lapsed. Subsequently, MoU was entered into between the defendant Nos. 1 and 2 and plaintiff, wherein it was agreed that the obligations of the defendants were to be paid by SFIPL. The defendants have themselves stated that a second BTA dated 09.08.2016 was entered into between the Defendant No. I and 2 and SFIPL under which the business liabilities of Defendant Nos. I &. 2 were taken over by SFIPL. Thus, SFIPL had made a payment of Rs. 82,44,16,812/- out of Rs. 95 crores to the plaintiff on behalf of the defendants. The observations made in Paragraph-36 are accordingly clarified.

20. The last contention raised is with respect to Paragraph-33 of the Judgment dated 28.02.2024, which reads as under “ In the present Review Petition, the defendants had placed reliance on IFCI Factors Ltd. vs. Maven Industries Limited, 225 (2015) DLT 32, wherein it has been held that the Suit if filed on the basis of a contract containing liquidated amount or a dishonoured bill of exchange or cheque, by itself without any further fact or document, required to be proved or pleaded shows the liability of the defendants only then such a suit is maintainable. However, if the amount claimed does not spring directly from a written document, i.e. dishonoured cheques, but further documents have to be looked into or the part-payment made after the contract is adjusted, then such suit is not maintainable under Order XXXVII of CPC, 1908.”

21. It is asserted that the judgment of IFCI (supra) is totally distinguishable from the facts of the present case. In IFCI (supra), the Court had concluded that the plaintiff had not instituted the Summary Suit on the basis of a written contract. The cause of action was based on statement of account and not on a written contract. Therefore, IFCI (supra) is not applicable to the facts of the present case. Further, it has been misconstrued that if a part payment has been made after the contract and the same is adjusted, then the Suit under Order XXXVII of CPC, 1908 would not be maintainable. In fact, IFCI (supra) does not lay down this proposition of law.

22. It is, therefore, submitted that IFCI (supra) has been wrongly made applicable to the facts of this case, to give an incorrect finding about the part payment of the admitted amount, leading to non-maintainability of the Summary Suit which is in direct conflict with the well-established legal positions.

23. The observations made with respect to ratio decidendi of IFCI (supra) is in conflict with the well-established legal position as it is no longer res integra that the plaintiff has a right to claim and recovery the remaining or balance of the admitted amount arising from a contract in a Summary Suit as has been held in aforementioned judgments, particularly in Inventa Cleantec Pvt. Ltd. (supra), wherein it had been observed that the Suit under Order XXXVII of CPC, 1908 on the basis of Invoices is maintainable, even if the amount claimed is less than the Invoices after an adjusting payment made.

24. The petitioner-plaintiff in support of its assertions has placed reliance on the decisions in Sunpro Integrated Communication Services Ltd. vs. Capricot Technologies Pvt. Ltd and Ors., 2020 SCC OnLine Del 2284, Bijender Chauhan @ Bijender Kumar vs. Financial Eyes (India) Ltd., 2013 (4) ILR (Del) 3234, Inventa Cleantec Pvt. Ltd. vs. Amit Mudgal, 2016 IX AD (Delhi) 329, TTK Prestige vs. India Bulls Retail Services Ltd., 2013 (136) DRJ 217, Dura-Line India Pvt. Ltd. vs. BPL Broadband Network Pvt. Ltd., AIR 2004 Delhi 186, Bharat Forge Ltd. vs. Onil Gulati, 2005 (83) DRJ 140 and Mist Avenue Pvt. Ltd. vs. JMS Steels and Power Corporation & Ors.,

25. It is, therefore, submitted that the Judgment dated 28.02.2024 suffers from misconception of law and material error has been made. Order XXXVII Rule 3(5) of CPC, 1908 has been overlooked while granting unconditional leave to defendant to the defendants.

26. It is further claimed that the respondents-defendants had admitted the outstanding liability in the MoU. There were several cheques which had been issued pursuant to the MoU, all of which were admittedly dishonoured. The existence and the contents of the same under the MoU were unchallanged. The amount claimed in the Summary Suit was thus admitted and, therefore, the respondents-defendants were not entitled to leave to defend.

27. Before referring to the aforesaid judgments, the fundamental principle which is discernable from Order XXXVII of CPC, 1908 is that the Summary Suit is maintainable if the entire liability against the defendant and in favour of the plaintiff ex facie emanates directly from a written contract containing the specific liquidated amount which may be in the nature of Bill of Exchange, Cheque, Invoice, etc. The object of provision of Order 37 CPC is that when there is a written document which ex facie, in itself, without any additional factual events, averments, adjustments or documents pleaded as a cause of action in the suit, admits and acknowledges liability and obligation of the defendant to pay to the plaintiff the defined amount, a Suit can be filed under Order 37 CPC.

28. In IFCI (supra), reference was made to Order dated 4.11.2015 in CS(OS) No. 3316/2015 titled as Krishan Kumar Wadhwa v. Arjun Som Dut wherein it was observed that the object of provision of Order 37 CPC is that when there is a written document which ex facie, in itself, without any further factual events to be pleaded as a cause of action in the suit, admits and acknowledges liability and obligation of the defendant to pay to the plaintiff and only when a suit can be filed under Order 37 CPC suit. A historical fact of an amount paid under an agreement to sell long back and which is stated to be refundable in case the Agreement does not go through, cannot be the basis of Order 37 CPC, once various events transpire after execution of a particular document and the document is not to be taken as the last word as the contractual document between the parties from which arises the obligation to pay as required by Order 37 CPC. When we look at Order 37 CPC it is seen that the said provision is with respect to filing of the suits either on the basis of a negotiable instrument or a written contract of guarantee or a written contract obliging payment of liquidated amount. Order 37 CPC is antithesis of the ordinary procedure where a defendant can contest a matter as a matter of right. This provision of Order 37 CPC is provided where from a written document a clear-cut obligation of a liquidated amount is shown to be payable to the plaintiff by the defendant and execution of which fact without anything more is the only and the complete cause of action of the Order 37 CPC suit. If facts have to be stated in addition to the document which falls under Order 37 CPC, then such a suit does not lie under Order 37 CPC. Order 37 CPC therefore provides that the suit must say that no other relief is claimed in the Order 37 CPC suit i.e. except because of the documents which are the subject matter of Order 37 CPC. ”

29. In IFCI (supra), it was thus, concluded that “If in the suit plaint, besides the averments of the cause of action of the written contract containing the specific liquidated amount which is specifically claimed in the suit, necessary further facts, averments and cause of action has to be pleaded for the plaintiff to show the claim to the amount claimed in the suit, then, such a suit is not based only on the written document only or the dishonoured bill of exchange or cheque only because other facts are to be established to show the liability of the defendant claimed in the suit, and thus such a suit was not intended by the legislature to be filed under Order XXXVII CPC.

30. It was categorically observed by this Court that where the suit amount claimed is not a liquidated amount payable under the Memorandum of Agreement because the suit amount was different than as contained in the Loan Agreement; rather it was the balance resulting from various debit and credit entries over a long period of time. The Suit, in such circumstances is not maintainable under Order XXXVII CPC, 1908. In a Suit based on Invoices, if payments had been made against some of the Invoices and the due amount was calculated as per the Statement of account, then the Suit is not based on the Invoices, but on the Statement of Account which does not contain the admitted amount and thus, the leave to defend was granted unconditionally.

31. In this context, a reference may also be made to Bijender Chauhan @ Bijender Kumar (supra), which was a case based purely on the amounts due under Invoices and not on Statement of Accounts, which had been referred to only as a complementary document to the Invoices. The Suit was purely on the amounts calculated from the Invoices and it was held that the admitted amount as stated in the Invoices, can be the basis for a Suit under Order XXXVII of CPC, 1908.

32. Similar observations have been made in the other judgments which have been relied on behalf of the petitioner-plaintiff, wherein it has been observed that if the amount claimed is referrable to a written document, then the Suit under Order XXXVII of CPC, 1908 is maintainable.

33. However, in the facts of each case, it has been held that if there are subsequent payments made or adjustments/Claim made of the amounts which are claimed beyond the amounts referred to the written document, then in certain circumstances, it may entitle the defendants to the leave to defend.

34. Now applying these fundamental well established principles to the facts of the present case, it has been clearly observed that the admitted amount under the MoU was Rs. 20,46,16,045/-. Rs. 2.[5] crore was admittedly paid by SFIPL which again is referrable to MoU and is not disputed. To this amount, the petitioner-plaintiff has added an interest in the sum of Rs. 6,98,85,301/-. This crystalized amount of interest which has been added in the principal amount is not referable to the amount admitted under MoU. Neither the rate of interest was agreed between the parties nor the method of calculation. This is what has been observed in the impugned Order that when the part claim made in the Suit amount is not referable to the MoU, then it does not fall under Order XXXVII of CPC, 1908.

35. There is no infirmity in observations made in Paragraph-33 of the Judgment dated 28.02.2024. Before concluding, it may be observed that some of the grounds agitated herein are on the merits of the case, which even otherwise cannot be agitated under the review jurisdiction.

36. In view of above, the present Review Petition is disposed of.

JUDGE NOVEMBER 06, 2024 S.Sharma