-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 347 OF 2009 IN SUMMARY SUIT NO. 1758 OF 2005. Naresh Jivraj Solanki. ..Plaintiff. Versus Hirabhai Jethabhai Sosa. ..Defendant. Mr. Sanjay Jain i/b Mr. R. I. Vakil for the plaintiff. Mr. S. B. Prabhawalkar for the defendant. Coram : R. V. MORE, J. Date : January 28, 2010. P. C. : 1. Heard Mr. Jain and Mr. Prabhawalkar, learned counsel for the plaintiff and defendant respectively. 2. The plaintiff has filed the above summary suit against the defendant for recovery of an amount of Rs.5 lacs along with interest @ 18% p.a. from the date of the suit till its realisation. The suit is based on a document, a copy whereof is annexed at Exhibit-A to the plaint. The said document is titled as “Receipt-cum- Writing” dated 21st June 2002. It is the specific case of the plaintiff that under the said document, he advanced an amount of Rs.5 lacs to the defendant by way of friendly loan without any interest and the said amount of loan was to be repaid within the period of 4 months. Since this amount was not paid, the plaintiff issued demand notice dated 4th September 2003 and since same was not even replied, he was constrained to file present suit. 3. Since the defendant failed to put an appearance in the aforesaid summary -: 2 :- suit after service of writ of summons, the suit was decreed ex-parte by order dated 27th March 2006. Thereafter warrant of attachment was issued in respect of shop premises belonging to the defendant's wife. The defendant's wife thereafter took out Chamber Summons No.1957 of 2007 for lifting the attachment. The defendant also filed notice of motion No. 3161 of 2008 for setting aside the ex-parte decree. The chamber summons taken out by the wife of defendant was dismissed by the learned single judge by order dated 11th August 2008 and therefore an appeal was filed before the Division Bench. The Division Bench allowed the appeal on condition that the defendant's wife shall deposit an amount of Rs.5 lacs. The said condition is already complied with. So far as the notice of motion taken out by the defendant is concerned, same was disposed of by this Court by order dated 15th January 2009. By this order, the ex-parte decree was set aside on the condition of defendant depositing an additional amount of Rs.3 lacs. In pursuance of this direction, the defendant has already deposited an amount of Rs.3 lacs. By the very order the total amount of Rs.8 lacs, deposited by the defendant as well as his wife, was transferred to the credit of the above summary suit. The plaintiff was also given liberty to take out Summons for Judgment in the aforesaid summary suit. In the above backdrop, the plaintiff has filed the present summons for judgment. 4. Mr. Jain, learned counsel appearing on behalf of the plaintiff submitted that the amount of Rs. 5 lacs was advanced to the defendant on executing Receipt-cum-Writing on a stamp paper of Rs.100/-. This writing is duly signed by the defendant and same is also notarised in the presence of advocate. He further submitted that demand notice dated 4th September 2003 was served on the -: 3 :- defendant, however, the amount was not paid by him. He then commented upon the defence of the defendant regarding denial of his signature on the said stamp paper. He submitted that this defence is taken nearly after 5 years and therefore same is not honest. He lastly submitted that the plaintiff is entitled for decree in terms of prayers in the suit. 5. Mr. Prabhawalkar per contra by filing reply contested the summons for judgment. Mr. Prabhawalkar flatly denied signature of the defendant on the said receipt. He submitted that the defendant's signature on the said receipt is forged one. He also disputed the signature of notary as well as advocate on the said receipt. He requested that the said receipt may be impounded and be sent to the Hand-writing Expert for verification of the defendant's signature. He submitted that the relations between the plaintiff and defendant were not cordial. The defendant had filed a NC complaint and therefore the plaintiff could not have given friendly loan to the defendant. Mr. Prabhawlkar further submitted that the demand notice dated 4th September 2003 as well as writ of summons of the summary suit were not served on the defendant as he was not staying in the premises where the notice is alleged to have been served. He also pointed out provisions of section 34 of the Bombay Stamp Act, 1958 and submitted that the suit receipt is not admissible in evidence. Lastly he relied upon order dated 15th January 2009 passed by this Court by which the ex-parte decree was set aside and submitted that the amount of Rs.8 lacs which is already deposited by him and his wife should be refunded to the defendant by granting unconditional leave to defend the suit. 6. Mr. Jain, learned counsel for the plaintiff, in re-joinder to the arguments of -: 4 :- Mr. Prabhawalkar, submitted that the said receipt cannot said to be inadmissible in view of provisions of section 34 of the Bombay Stamp Act, 1958. He invited my attention to the defendant's reply, especially paragraph no.18 thereof, alongwith copy of the original notice dated 4th September 2003 and submitted that since copy of said notice was produced by the defendant in his reply, now it could not lie in the month of the defendant that the said notice was not served upon him. He lastly submitted that even in the event of leave to defend is granted to the defendant, the amount already deposited by the defendant and his wife cannot be allowed to be withdrawn by the defendant. In this regard, Mr. Jain relied upon the provisions of Order-XXXVII Rule-4 of the CPC and cited the judgment of the Apex Court in the matter of Rajni Kumar v/s. Suresh Kumar Malhotra & Anr, reported in 2003(5) SCC 315. 7. Having heard learned counsel for the respective parties and having gone through their pleadings alongwith annexures thereto and relevant provisions of the law, in my view, the defendant has made out a case for grant of unconditional leave to defend the suit. I am also of the view that the defendant is entitled to refund of the amount already deposited by him and his wife in this Court as condition precedent for lifting the attachment and setting aside ex-parte decree. 8. The suit is based on a solitary document - Receipt-cum-Writing dated 21th June 2002. This document is written on a stamp paper of Rs.100/-. The stamp paper is purchased in the name of one Kalyan Jagdale, Advocate. It is specific contention of the defendant that his signature on this document is forged one. He also disputed the signatures of notary and advocate who attested the said document. I find that this contention was taken by the defendant even in the -: 5 :- Notice of Motion that was filed for setting aside ex-parte decree. Inspite of this position, the plaintiff has not filed affidavit of notary or advocate who attested the said document. 9. I have perused the signatures of the defendant on the suit receipt as well as on the original passport and PAN Card produced by the defendant. The passport and PAN Card were issued to the defendant prior to the execution of the suit receipt. Prima facie, I am of the view that the defendant's signatures on passport and PAN Card do not tally with signature that on the said receipt. 10. That apart, the defendant has annexed with reply NC complaint which he had filed against the plaintiff. The said NC complaint was filed on 27th May 2000. It is alleged that previously the relations between the plaintiff and defendant were cordial, however, thereafter there were altercations between them and the plaintiff threatened the defendant to kill him and kidnap his children. In the teeth of this NC complaint, prima facie, the story of the plaintiff that he had advanced friendly loan of Rs. 5 lacs to the defendant in the year 2002 is not believable. 11. So far as the argument of Mr. Prabhawalkar that the suit receipt is not admissible in evidence in view of section 34 of the Bombay Stamp Act, 1958 is concerned, I am not expressing any opinion, and the submission is left open to be decided at the trial of the suit, since on the basis of fact I have come to the conclusion that the defendant has raised arguable points. 12. This takes me to consider the prayer of Mr. Prabhawalkar, that in the event of grant of unconditional leave to defend the suit, the defendant is entitled for refund of amount which he and his wife have deposited in this Court as condition -: 6 :- precedent for lifting of attachment and setting aside the ex-parte decree. I have perused the order dated 15th January 2009 passed in Notice of Motion No. 3461 of 2008. This notice of motion was taken out by the defendant for setting aside the ex-parte decree. In the said order, this Court has taken note of deposit of Rs. 5 lacs by the defendant’s wife, and defendant was further directed to deposit an amount of Rs.3 lacs. In clause (5) of the operative part of the said order, the Court made it clear that the said deposits of amount by the defendant and his wife shall be without prejudice to their rights and contentions that they are not liable to pay any amount/s to the plaintiff in the above suit. In clause (9) of the operative part of the order the Court further made it clear that the parties are at liberty to apply for further directions, if any, after the defendants deposit the further amount of Rs.3 lacs in the account of above summary suit. This order was passed by consent and has become final. Mr. Jain, learned counsel for the plaintiff opposed Mr. Prabhawalkar’s prayer for withdrawal of amount of Rs.8 lacs by submitting that the order dated 15th January 2009 passed in Notice of Motion No. 3461 of 2008 is required to be read alongwith the provisions of Order-XXXVII Rule-4 of the CPC. He also relied upon the Apex Court judgment in Rajni kumar’s case (supra). I have perused the provisions of Order-XXXVII, Rule-4 of CPC. The said provision deals with the Court’s power to set aside the decree under special circumstances. The Apex Court in Rajni kumar’s case (supra) distinguished the provisions of Order-XXXVII Rule-4 and Order-IX Rule-13 of the CPC and observed that for the purpose of exercising powers under Order-XXXVII Rule-4, the defendant is not only required to show special circumstances which prevented him from appearing or applying for leave to defend the suit but he has -: 7 :- to also show the facts which could entitle him to defend the suit. The above submission of Mr. Jain does not take the plaintiff’s case any further inasmuch as the ex-parte decree is already set aside and liberty was given to the defendant to apply for further direction viz-a-viz the withdrawal of amount deposited by the defendant and his wife. In the backdrop of facts and circumstances mentioned above, I dispose of the Summons for Judgment by passing following order. : O R D E R : (1) The defendant is granted unconditional leave to defend the suit. Office is directed to transfer the suit to the list of “commercial causes suits”. The defendant is granted 4 weeks time to file written statement. (2) The defendant alongwith his wife is at liberty to make a joint application for withdrawal of amount of Rs.8 lacs together interest, if any, accrued on the said amount, within the period of 4 weeks. In the event of such application being filed, the aforesaid amount shall be allowed to be withdrawn by them. (3) It is expressedly made clear that all observations made and conclusions arrived at in this order are prima facie and tentative and same are made for the disposal of the present summons for judgment. Needless to mention that the suit shall be disposed of independently, on its own merits without being influenced by the aforesaid observations made by me. (4) Since unconditional leave to defend is granted to the defendant, -: 8 :- Office is directed to return the original documents submitted by the plaintiff at the time of seeking ex-parte decree. 13. At this stage, Mr. Jain requests to stay the operation of this order for the period of six weeks to enable the plaintiff to approach the appellate Court. This request is not seriously opposed by Mr. Prabhawalkar. In the interest of justice, this order shall take effect after the period of six from today. (R.V. MORE, J.)