1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 462 OF 2007 IN SUMMARY SUIT NO. 1226 OF 2007 Champalal Saaremal Jain .. Plaintiff V/s Altaf Abbas Mukadam & Anr. .. Defendants Mr. Ramesh Jain for the plaintiff. Mr. C.N. Chavan for defendant no.2. CORAM : D.G. KARNIK, J. DATE : 1ST JULY 2009 P.C. : 1. Heard the learned counsel for the plaintiff and the defendant no.2. 2. The suit has already been decreed against the defendant no.1. 3. The plaintiff has filed this suit for recovery of the principal sum of Rs. 59,000/- and interest. The case of the plaintiff is that he is doing the business of money lending under the Money Lenders Act. He advanced to the defendant nos.1 and 2 jointly a loan of Rs.60,000/- with interest at 21% 2 per annum. The defendant nos.1 and 2 executed a promissory note agreeing to jointly and severally pay to the plaintiff the sum of Rs.60,000/- with interest at 21% per annum. The defendant no.2 made part payment of Rs.2,050/-. Out of the said part payment, the sum of Rs.1,000/- was adjusted towards the principal and the sum of Rs.1,050/- was adjusted towards interest of one month, namely from 8th April 2005 to 7th May 2005. As the balance of the amount was not paid, this suit has been filed. 4. The plaintiff has filed on record the original documents under a compilation on 23rd June 2009. They contain, the original promissory note, office copy of the notice with the certificate of posting, photo copy of the money lenders licence and photo copies of the documents maintained under the Money Lenders Act. 5. Though receipt of the loan has been denied by the defendant no.2, the signature on the promissory note has not been denied. Below the promissory note, there is a specific separate endorsement of the defendant no.2 regarding receipt of money. Besides, under section 118 of the Negotiable Instruments Act, there is a presumption of consideration. In the circumstances, the contention of the defendant no.2 that no money was received has to be rejected. 6. The plaintiff has also issued notice to the defendants. An office copy 3 under the certificate of posting has been placed on record. The defendants did not reply the notice though they have denied the receipt of the notice. The certificate of posting shows that the notice was posted at the proper address of the defendants. 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 defendant no.2 has no arguable defence. However, since the decree has been passed against the defendant no.2 and the loan was jointly and severally advanced to the defendant nos.1 and 2, the plaintiff 4 cannot execute the decree against both the defendants separately. He would be required to give credit for the money, if any, received from the defendant no.1 after the decree. Hence, I pass the following order: (a) The summons for judgment is allowed and the suit of the plaintiff is decreed with costs against the defendant no.2. (b) The defendant no.2 shall pay to the plaintiff the sum of Rs.83,151.14 together with interest at 21% per annum on the principal sum of Rs.59,000/- from the date of the suit till payment or realisation. (c) The plaintiff shall declare before the executing court the amount, if any, received from the defendant no.1, and the executing court shall give credit to the defendant no.2 for the amount received from the defendant no.1. (D.G. KARNIK, J.)