*1* sj.326.09.ss.1587.09.16 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.326 OF 2009 IN SUMMARY SUIT NO.1587 OF 2009 Mulchand R. Saiya. ..Plaintiff -Versus- Prabhat Trading Company and others. ..Defendants .......... Mr.Q.M.Ashfaq, for the Plaintiff. Mr.M.N.Kania a/w Manish Kania i/b Legal Spectrum, for the Defendant Nos.3, 4, 5 and 7. Mr.M.V.Aiya, for the Defendant Nos.1, 8 to 11. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd December, 2010. P.C. 1 Heard Mr.Ashfaq, learned counsel appearing for the Plaintiff and Mr.Aiya, learned counsel appearing for the contesting Defendant Nos. 1, 8 to 11. Perused the plaint and annexures thereto. 2 In paragraph No.4 of the plaint, it is stated that during the course of transaction the Defendant No.1 drew certain “On Demand Promissory Notes” through its partners for the value received by the Defendants during the course of ordinary business of the Defendant No.1 for the purpose of their business which was then stated to be in financial crisis. The Plaintiff is supposed to have assisted the firm by giving loan of Rs.2 lacs in cash. The Plaintiff relies upon the promissory notes, copies of which are at Exhibits-A and A-1 to the plaint and the suit is based thereon. *2* sj.326.09.ss.1587.09.16 3 In paragraph No.5 of the plaint, it is stated that “On Demand Promissory Notes” drawn by the Defendant No.1 through the Defendant No.9 were duly signed in the presence of the Plaintiff, so also, some of the Defendant Nos.2 to 7. These promissory notes were not honoured and payment was not made, the demand notices were served on the Defendant Nos.1 and 9 to 11, copies of which are at Annexure-B and B-1 to the plaint. These demand notices are dated 09.04.2009 and 09.05.2009. 4 In reply to the demand notices, on 14.05.2009 M/s Prabhat Trading Company, Harish Jethlal Kakka, Atul Jethalal and Jethalal Maganlal Kakka who are none other than the Defendant Nos.1, 9, 10 and 11, through their Advocate stated that Jethalal Kakka who is Defendant No.11 to the suit was never partner of M/s Prabhat Trading Company and was in England when the two demand promissory notes were allegedly executed. But in paragraph No.3 of the reply it was stated that no loan was ever taken by the Defendant Nos.1, 9 to 11 nor have they executed any demand promissory note. Signatures thereon are forged and fabricated. It is this stand which has been reiterated before me by the subject Defendants. 5 On own showing of the Plaintiff that the demand promissory notes are executed by the Defendant No.9 who is not stated to be partner but known to the Plaintiff personally, then, whether liability at all arises on account of the alleged acts of the Plaintiff and the Defendant No.1 firm and whether, the promissory notes are executed in furtherance thereof, are the triable issues. More so, because the Defendant No.9 on affidavit has denied execution of the promissory note itself. The contents of plaint and the stand taken in the affidavit in reply would also raise triable issue for consideration. *3* sj.326.09.ss.1587.09.16 6 For all these reasons, there will be unconditional leave to defend. The suit is transferred to the list of commercial causes with usual directions to file the Written Statement, discovery and inspection. The Summons for Judgment is, accordingly, disposed of. (S.C. Dharmadhikari, J)