Summons For Judgement No. 173 of 2010

7th March, 2012

Petitioner Counsel: Mr.RAMESH JAIN
Respondent Counsel: Mr.O.S.KUTTY

Cases Cited:
Sha Damji Deraj Vs. Megraj Bhikumchand And. Co., (1958) Bom. LR 1366 1959 ILR, Bom. 451 [Para 5,6,7,8]
Vithan Krishna Vs. Sogmal Nathmal, (1957) 59 Bom. LR 1043 [Para 5]
Champalal Saaremal Jain Vs. Altaf Abbas Mukadam and another, Summons for Judgment No. 462 of 2007 in Summary Suit No. 1226 of 2007, Dt. 1/7/2009 [Para 6,8]

JUDGMENT

JUDGMENT :- This summary suit is based on the alleged Promissory Note dated 23rd March, 2008 Ex."A" to the plaint. Some of the relevant facts are setout as under :-

2.It is the case of the Plaintiff that he is carrying on business of money lending. It is alleged that Defendant had executed the Demand Promissory Note on 23rd March, 2008 for valuable consideration being a sum of Rs.80,000/- received by the Defendants from the Plaintiff against and on the basis of execution and handing over of a Demand Promissory Note. It is the case of the Plaintiff that the Defendant failed to pay the said amount and kept the Plaintiff on false and baseless promises and therefore the Plaintiff through advocate notice dated 24th November, 2008 called upon the Defendant to pay aggregate amount of Rs.80,000/- with interest. It is the case of the Plaintiff that though the Defendant received the notice, neither any reply was given nor was any repayment made to the Plaintiff. Plaintiff, accordingly, filed this suit for recovery of Rs. 94,432.87 ps. with interest on Rs.80,000/- from the date of filing the suit till payment or realisation. The Plaintiff, took out Summons for Judgment bearing No. 173 of 2010.

3.In response to the Summons for Judgment, the Defendant filed her affidavit in reply. It is the case of the defendant that summary suit procedure is not applicable to this suit as admittedly the provisions of Bombay Money Lenders Act, 1946 applies to this suit and since it is hit by the provisions of Bombay Money Lenders Act 1946, the defendant is entitled to unconditional leave.

4.The defendant has also contended that the suit is barred by period of limitation. In the affidavit in reply the Defendant has denied any transaction with the plaintiff and also denied her signature on the alleged Promissory Note. It is alleged by the Defendant that the alleged Promissory Note is manipulated and is a forged documents. It is also alleged by the Defendant that no such notice as referred by the Plaintiff in the plaint at Ex."B" has been received by the Defendant. The Defendant has alleged that there are triable issues and therefore she is entitled to unconditional leave. I have heard the learned advocates and have bestowed my anxious consideration to the rival submissions made by the learned advocates.

5.In support the first defence raised by the Defendant that in view of the applicability of the provisions of Money Lending Act, the suit is hit by provisions of the said Act, the learned Advocate appearing for the Defendant placed a reliance upon the judgment of this court in the case of Sha Damji Deraj v/s. Megraj Bhikumchand And. Co. reported in (1958) LX Bombay Law Reporter 1366. The Learned Advocate invited my attention to the last para of the said Judgment at para 1368. This court in the said judgment followed the Judgment of this court in Vithan Krishna v/s. Sogmal Nathmal reported in (1957) 59 Bombay Law Reporter 1043 which reads thus:-

"We are, therefore, unable to uphold this submission of Mr.Walawalkar; but it is really not necessary to determine it for the purpose of determining this appeal."

Therefore, this particular contention was not expressly negatived by the Court. But in my opinion, it is unnecessary in view of this observation of Mr.Justice Tendolkar expressly to decide in this revision application that the provisions of O.XXXVII do not apply to a suit to which the Bombay Money-lenders Act of 1946 applies. It would be sufficient to say that looking to the provisions of that Act if a suit is filed under O.XXXVII and if the Money-lenders Act applies to such a suit, in any view of the case unconditional leave must be given to the defendant.

6.After following the said Judgment, the Hon'ble the then Chief Justice Shri M.C.Chagla granted unconditional leave to the defendant to defend the suit. Mr.Jain, the learned advocate appearing for the Plaintiff invited my attention to the order dated 1st July, 2009 in Summons for Judgment No. 462 of 2007 in Summary Suit No. 1226 of 2007 in the case of Champalal Saaremal Jain v/s. Altaf Abbas Mukadam and another. The Learned Advocate contended that the Judgment reported in case of Sha Damji Deraj v/s. Megraj Bhikumchand And. Co. 1959 ILR, Bombay 451 was referred by this Court in the said Judgment and after considering the same, this Court still passed the decree in favour of the Plaintiff.

7.In my view, the issue raised in the Summons for Judgment No. 462 of 2007 while referring to the Judgment in case of Sha Damji Deraj (supra) was not as to whether unconditional leave should be granted or not to the Defendant if provisions of Money Lenders Act were applicable. From the perusal of para (7) of the Order dated 1st July, 2009 in Summons for Judgment No.462 of 2007 it is clear that the submissions of the Defendant therein was that the Plaintiff had not complied with the provisions of Money Lenders Act and therefore, he is not entitled to a decree. In that context, D.G.Karnik, J. in the said Order held that the Defendant had not set out as to which provision of the Money Lenders Act had not been complied with and further held that in any event, provisions of Money Lenders Act had been complied with. Para 7 of the said order reads thus :-

7. Learned counsel for the defendant no.2 submitted that the plaintiff has not complied with the provisions of the Money Lenders Act and, therefore, he is not entitled to a decree. Counsel referred to and relied upon a decision of this Court in Sha Damji Deraj v. Megraj Bhikumchand and Co.,1959 ILR Bombay 451. In my view, the decision is not applicable to the facts of the present case. The defendant no.2 has made part payment. Which provision of the Money Lenders Act has not been complied has not been set out. Counsel however submitted that a copy of the statement of account was not furnished to the defendant no.2 and that constitutes the breach. The plaintiff has produced on record a photo copy of Form No.8 which bears the signature of the defendant no.2. He has also produced on record the office copy of the statement of account and certificate of posting for having posted the same. Thus, the provisions of the Money Lenders Act has been complied with.

8.In my view the issue decided in the case of Sha Damji Deraj in 60 Bombay Law Reporter 1366 holding that if suit is filed under Order XXXVII of Code of Civil Procedure and if the money lenders Act applies to such a suit, in any view of the case unconditional leave must be given to the Defendants has not been distinguished or dealt with in the Order dated 1st July, 2009 passed in the case of Champalal Saaremal Jain (supra). In my view, the facts of the case of Champalal Saaremal Jain are totally different and therefore the Order dated 1st July, 2009 passed by D.G.Karnik, J. does not apply to the facts of this case. At this juncture, it must also be pointed out that it is common ground that the provisions of Money Lenders Act are applicable as set out by the Plaintiff himself in paragraphs (6) and (10) of the plaint. In my view, in view of the admitted facts that alleged transaction has been governed by the provisions of Money Lenders Act, in view of the Judgment delivered by this Court in the case of Sha Damji Deraj (supra) Defendant is entitled to unconditional leave to defend the suit. Mr.Kutty, the learned advocate informed that there is no contrary view taken by this Court or the Apex Court and the Judgment in case of Sha Damji Deraj (supra) still hold the field. Mr.Jain, the learned advocate could not point out any other Judgment taking contrary view. Since both the parties have also argued on merits, and the Defendant has applied for unconditional leave also on merits, I have considered the same also.

9.The Learned Advocate appearing for the Defendant contended that the amount alleged to have been advanced by the Defendant was in cash. The Defendant has disputed her signature on the alleged Promissory Note. The Plaintiff in his rejoinder in para (10) has categorically denied that there was any other transaction between the Plaintiff and the Defendant. Mr.Jain, the Learned Advocate appearing for the Plaintiff contended that notice dated 24th November, 2008 calling upon the Defendant was served by Under Certificate of Posting at the address of Sion Hospital as the Defendant was employed with the said hospital. The Plaintiff has disputed the receipt of alleged notice. The Learned Advocate appearing for the Defendant also contended that from the perusal of the alleged signature of the Defendant on the Promissory Note and Form No. 8 relied upon by the Plaintiff, it is clear that both the signatures are different. The Plaintiff has not explained the source of payment of Rs.80,000/-. In my view, there are disputed questions of facts and the triable issues have been raised by the Defendant. The Defendant is, therefore, entitled to unconditional leave to defend. The Defendant is directed to file Written Statement within a period of four weeks from the date of this order. Office to place the suit for framing of issues on 18th April, 2012. Summons for Judgment is disposed of accordingly. Suit is transferred to the list of Commercial Causes.

Ordered accordingly.