1 sj313-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.313 of 2009 . in Summary Suit No.2240 of 2007 Prakashchand Pukhrajji .. Plaintiff v/s. Laljikumar Mohanlal Shah ..Defendant Mr.Ramesh Jain for the Plaintiff. Mr.Kiran Jain with Ms. Neeta Solanki for the Defendant CORAM : R.Y.GANOO, J. DATED : 23rd August, 2010 P.C. : 1. The plaintiff claims that defendant had executed two documents covering each for Rs.1 lakh to be a transaction of Sarafi loan. Thereafter the defendant issued four cheques each for Rs.50,000/- each towards the repayment of the said loan. These four cheques got dishonoured. Thereafter the defendant has paid certain amounts, more particularly stated in the particulars of claim and therefore the plaintiff has instituted this suit for recovery of principal amount of Rs.1,40,000/- and interest thereon totalling to Rs.2,11,977.56p with interest at the rate of 18% per annum on Rs.1,40,000/-. It is noticed 2 sj313-09.sxw that after the dishonour of the cheques, settlement was arrived at by and between the parties. It was agreed that defendant shall pay every month a sum of Rs.5000/-. It is noticed that as and when the defendant used to pay the sum of Rs.5000/- plaintiff used to issue receipt for having received the said amount. According to the defendant on 10.2.2005 when the sum of Rs.5000/- was paid, receipt for the said amount was executed and in the later portion of the said receipt an endorsement was passed so as to indicate that on that day it was agreed by and between the plaintiff and defendant that the total liability was reduced to Rs.70,000/- and that is how there is an admission of liability on the part of the defendant. The plaintiff fairly conceded that after February 2005, defendant has paid 11 instalments each of Rs.5000/-. 2. Below the said endorsement, signature of the plaintiff as well as the defendant is seen. The said endorsement does not bear the date. It is mentioned across the bar on behalf of the defendant that the said endorsement is in the handwriting of the advocate for the plaintiff whereas Counsel for the plaintiff contended that the said endorsement is in the handwriting of the defendant. 3 sj313-09.sxw 3. Learned Counsel Mr. Kiran Jain wanted to read to this court the evidence led by the parties in criminal proceeding filed by the plaintiff under Section 138 of the Negotiable Instruments Act, 1881. I declined to read the said evidence as according to me the considerations/points involved in Civil case would be completely different from the points covered in a criminal trial. 4. Learned Counsel for the defendant heavily relied upon the endorsement appearing on the receipt dated 10.2.2005. As the said endorsement does not bear a date it is not possible to know as to when the said endorsement was made. It is noticed that on certain occasions the plaintiff has been passing on receipts which are signed at two places, one above the words “I received” and other signature above the name of the plaintiff. Learned Counsel for the defendant contended that endorsement on receipt dated 10.2.2005 goes to show that the liability was limited to the amount mentioned in the said endorsement. 5. In so far as issuance of four cheques by the defendant, it was 4 sj313-09.sxw contended by Counsel for the defendant that the said cheques were given by way of security. In the course of arguments, learned Counsel for the defendant could not explain to the court as to what was the occasion for the defendant to issue those four cheques by way of security. Hence the said stand of the defendant that four cheques were issued by way of security cannot be accepted. 6. Once it is noted that four cheques were issued by the defendant and if those four cheques are dishonoured, prima facie the defendant is liable to pay to plaintiff the amount covered by the four cheques as the claim on the dishonoured cheques. There is no satisfactory explanation coming from the defendant as to why said cheques were issued. 7. Coming to the question of endorsement by which it is claimed that claim was settled for Rs.70,000/- I hold that there ought to have been a proper document thereby bringing on record the settlement arrived at by and between the parties. The endorsement appearing on the receipt dated 10.2.2005 is without a date. The manner in which the said endorsement has been scribed on the said document is also 5 sj313-09.sxw required to be seen with suspicion. The said endorsement is in the handwriting of the defendant. If this be so, the entire burden is on the defendant to show the circumstances under which said endorsement was made. The burden to prove the text of the endorsement and related aspects is on the defendant. As of today his defence cannot be straight away accepted. Hence defendant cannot get unconditional leave to defend the suit. According to plaintiff i.e. upto institution of the suit, the defendant has paid Rs.60,000/-. As against this Counsel for the defendant states that he has paid in all a sum of Rs.75,000/-. Accepting the stand of the defendant that he has paid a sum of Rs.75,000/- and giving credit to that amount, with reference to the liability of Rs. 2 lakh, the sum of Rs.1,25,000/- remains to be paid. In view of aforesaid facts and circumstances. I am inclined to fix the amount of Rs.75,000/- to be deposited by the defendant to defend the suit. Hence following order is passed. ORDER i) Upon defendant depositing in this Court a sum of Rs.75,000/- (Rupees Seventy-five Thousand Only) on or before 30.9.2010, the defendant is granted leave to defend the suit. Written statement to be 6 sj313-09.sxw filed on or before 7.10.2010 in the office alongwith proof of having deposited in this court sum of Rs.75,000/- ii) If the sum of Rs.75,000/- is deposited, office to invest the amount in a Fixed Deposit, initially for a period of one year and continue to renew the same for like period till further order is passed. ii) Summons for judgment is disposed of in above terms. There shall be no order as to cost. [R.Y.GANOO, J.]