((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.867 OF 2003 IN SUMMARY SUIT NO.1476 OF 2003 Brijesh B. Vissanji Plaintiff versus Narendra Motibhai Patel & anr. Defendants Mr.S.H.Doctor with M.S.Doctor i/by Bachubhai Munim & Co. for plaintiff. K.M.Sangani for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 12th July 2005 PC : 1. At the outset, Mr.Doctor - learned Senior Counsel appearing for plaintiff states that no reliefs are claimed against defendant no.2. Mr.Sangani appears for defendant no.1. 2. With the assistance of learned counsel appearing for both sides, I have perused the plaint, annexures thereto, original of Exhibit-B and further affidavits in reply, rejoinder etc.. 3. The case of the plaintiff is that at the ((-2-)) relevant time first defendant who is father of the second defendant was known to him because second defendant and the plaintiff were engaged to be married. The engagement was subsequently called off. In or about June 2000 first defendant requested the plaintiff for a loan of Rs.21.80 lakh. First defendant requested plaintiff to advance loan by way of a demand draft drawn in favour of defendant no.2. 4. On 14th June 2000 plaintiff lent and advanced to defendant no.1 the sum as aforesaid, by demand draft drawn in favour of second defendant. It is plaintiff’s case that this demand draft was issued by Union Bank of India at the request of M/s.Vissanji Khimji & Co., which is a partnership firm of the family members of plaintiff. The firm and the family members maintain their respective accounts and that is how the demand draft has been drawn by the Banker of the family members. The bank statement is annexed whereby the account of the firm has been debited to the extent of amount of demand draft. However, according to the plaintiff, on 18th June 2000 first defendant addressed to the plaintiff a letter in the following terms :- ((-3-)) "From : Shri NARENDRA MOTIBHAI PATEL, IB-9, Sai Kamal Residency, Ram Nagar Colony, NDA Road, Pashan, Pune - 411021. To : Shri Brijesh B. Vissanji, Videocon House, 99, Nepean Sea Road, Mumbai 400 006. June 18, 2000. Dear Sir, Re : Your Loan to me. Re : Your Loan to me. Re : Your Loan to me. . This is to confirm that, I have received a Loan from you by a Demand Draft issued by Union Bank of India, Mumbai, on their Pune Branch, bearing No.013486 dated 14-06-2000, for Rs.21,80,000/- (Rupees Twenty One Lacs Eighty Thousand only), in my favour, for which I thank you. . I thank you once again, Yours Truly, Sd/- (Narendra Motibhai Patel) PAN # AA CPP 5635 N. PA No.34-058-PN-8730 AC. CIR 23(3)/BMY." I confirm that the above is correct. Sd/- (Brijesh B. Vissanji)." 5. This letter has been signed by defendant no.1 and below his signature are all details including his permanent account number and the Income Tax Circle in which he has been assessed as an Income Tax payee. Below this signature of first ((-4-)) defendant, is the plaintiff’s confirmation. Mr.Doctor submits that said letter clearly acknowledges receipt of the sum by demand draft. The consideration is also admitted. There was thus a clear promise and assurance to pay the sum. Since personal request from the plaintiff did not meet with any favourable response, on 25th September 2002 plaintiff addressed a letter and the first defendant was called upon to repay the amount. The second letter was forwarded on 10th October 2002 and both letters were not responded. It is pointed out that in January 2001 the engagement was broken. It is further pointed out that the letter dated 18th June 2000 (Exhibit-B) constitutes a written agreement and in any event an assurance or promise to repay the amount advanced by demand draft and therefore, Order XXXVII of the CPC has rightly been invoked. A decree is, therefore, claimed in the sum of the demand draft along with interest @ 18% p.a.. 6. First defendant is the contesting defendant. He has filed affidavit in reply to this Summons for Judgement and has raised several contentions. First contention of Mr.Sangani is that the first defendant never requested the plaintiff for any loan. He did not ask for any loan or advance, ((-5-)) leave alone by demand draft. The demand draft is not in the name of first defendant. It is in the name of defendant no.2 and the amount has been advanced to defendant no.2 but no reliefs have been claimed against her. That apart, plaintiff is not partner of M/s.Vissanji Khimji & Co.. That partnership firm has from it’s bank account forwarded the amount by demand draft to defendant no.2 and it is a necessary party to the present suit. This non joinder is fatal inasmuch as there is no privity of contract between plaintiff and defendant no.1. The daughter has not sought for any loan and no amount is advanced to the first defendant. He states that by letter dated 21st July 2003 defendant’s advocate sought information with regard to books of account, partnership deed etc. and details of transaction but this letter is not replied nor inspection is given. Another contention that is raised is that plaintiff has obtained signature of defendant no.1 on blank paper under coercion or by undue influence, and therefore, letter dated 18th June 2000 (Exhibit-B) is not admissible and cannot be relied upon to claim the amounts from first defendant. The said letter has been given under threats and in any event the plaintiff has not advanced in his personal capacity any amount to ((-6-)) the first defendant. There is no written contract based upon which the present summary suit could be filed. For all these reasons, Mr.Sangani prays for unconditional leave to defend. He invites my attention to Sections 10 and 25 of the Contract Act as also the judgement of this Court reported in 1989-Mh.L.J.-310. He submits that triable issues arise and it is not as if letter at Exhibit-B can be accepted as an evidence leave alone as proof of fact which is in issue. 7. It is well settled that a summary suit is maintainable not only on the basis of a written contract but also on the basis of letters and acknowledgements where liability is admitted to repay the amounts. Moreso, when such amounts are advanced by cheques and demand drafts. In this behalf reference can usefully be made to two decisions of this Court rendered by Vazifdar, J. and Rebello, J. reported in AIR-2003-Bom-168 (Sun N Sand Hotel Ltd. Vs. M/s.V.V.Kamat, HUF) and AIR-2002-Bom-481 (Suraj Sanghi Finance Ltd. Vs. Credential Finance Ltd. and others). Reliance placed on the judgement of 1989-Mh.L.J.-310 is misplaced. In that case suit was based on a writing. The plea raised was that ((-7-)) such writing was inadmissible in evidence because it was insufficiently stamped. No such plea has been raised in the affidavit in reply. Mr.Doctor states that Exhibit-B is an acknowledgement of liability. Mr.Doctor’s submission is well founded. All that has happened in this case is that the father sought a loan from the plaintiff. The plaintiff approached his family members who assisted him by drawing the funds from the bankers of the firm in which the family members were partners. Further, the demand draft was issued in the name of second defendant. If these facts were pleaded, then definitely a triable issue would arise. However, there is no dispute that the letter dated 18th June 2000 (Exhibit-B) has been addressed by first defendant. The said letter has been reproduced by me. A reference to the same would indicate that the first defendant acknowledges firstly the fact that a loan was advanced by plaintiff to him. Secondly that it was by demand draft issued by Union Bank of India, Mumbai at their Pune Branch, and thirdly the loan amount was Rs.22.80 lakh. At the foot of this letter not only signature of first defendant appears but there are other details pertaining to his permanent account number. There was no occasion for the first defendant to ((-8-)) address and sign this letter if there was no privity at all. Therefore, in my view, merely because the firm is not impleaded as a plaintiff or that no reliefs are claimed against second defendant would not permit first defendant in wriggling out of the promise and assurance given by him in writing. This Court had an occasion to consider the effect of such acknowledgements and in the case of AIR-2003-Bom-168 (Sun N Sand Hotel Ltd. Vs. M/s.V.V.Kamat, HUF) and AIR-2001-Bom-116 (R.Kumar and Co. Vs. Chemicals Unlimited), this is what has been observed :- "AIR-2003-Bom-168 :- 32. In R.Kumar & Company vs. Chemicals unlimited, AIR 2001 Bombay 116 Kochar, J. dealt with a Summons for judgement in which the plaintiff based its cause of action on three letters, addressed by the Defendant to the Plaintiff, standing that in the account of the Plaintiffs certain amounts were shown as due by them to the Plaintiffs. In that case, the Defendant had also issued a T.D.S. Certificate the learned Judge held in paragraphs 10 and 14 as under : ‘10. According to me, to take any other narrow, pedantic or technical view of the matter would be to encourage dishonesty and immorality in life. I fail to understand how the defendants having written to the plaintiffs that certain amounts were shown payable by the defendants to the plaintiffs, can now turn about and say that no suit will lie for recovery of the said amounts shown to be the liability of the defendants towards the plaintiff. To accept such ((-9-)) contention would amount to encourage and accept dishonesty and immorality.’ ‘14. In our case, the defendants have themselves addressed the three letters to the plaintiffs pointing out to the plaintiffs the amount stated in their books of accounts to be their liability towards the plaintiffs. I fail to understand why this admission cannot be taken as the basis of a summary suit as an admitted or liquidated claim. The defendants on their own, voluntarily, informed the plaintiffs that the balance in the plaintiffs’ account as shown was payable by the defendants to the plaintiffs. An honest and straight forward businessman writes to the creditor that the letter is entitled to receive a certain amount from the former. In these circumstances, I am at loss to understand why no summary suit would lie on such a clear cut admission. To take any other view would be contrary to the honest and moral view of the law.’ The learned Judge went on to pass a decree in favour of the Plaintiff at the stage of the hearing of the Summons for judgement. 33. The judgements squarely apply to the present case. The authorities have uniformily held that an unconditional acknowledgement implies a promise to pay because that is the natural inference, if nothing is said to the contrary. In the present case there is no express agreement by the defendant to pay any amount to the plaintiff. The unconditional confirmation/acknowledge- ment of the closing balance constitutes an implied promise by the defendant to pay the same. The suit is maintainable as a Summary Suit." 8. In my view, merely stating that the letter was issued under threat or undue influence without any particulars forth-coming, would not ((-10-)) be enough. Pertinently on receipt of the demand notices, no such plea has been raised. The plea is raised for the first time in affidavit in reply and that too vaguely. If this was a clear case of fraud, coercion or threat, then there was no occasion to plead any absence of privity. The very fact that the first defendant is insisting upon particulars of transaction from the firm, means that there is no denial of execution of letter at Exhibit-B. The fact that this letter is signed is clear from the reading of affidavits filed in reply and sur-rejoinder. So also nothing much can be made of the fact that the demand draft was drawn in favour of the second defendant. If the transaction was between plaintiff and defendant no.2, then really there was no occasion for defendant no.1 to acknowledge the liability. In the light of the aforesaid, in my view, the defence as raised is not substantial. However, one of the principles which has to be applied while considering the application for leave to defend in a summary suit is to show mercy to the defendant even if the defence raised is plausible. Such mercy has to be shown in the case of plausible defence consistent with Rule 222 of the Bombay High Court (Original Side) Rules R/W Order XXXVII, Rule 3(5) ((-11-)) proviso. Since there is an acknowledgement of liability to the extent of the amount of the demand draft, in my view, interest of justice would be served if conditional leave is granted to the defendant to defend the summary suit on his depositing a sum of Rs.21.80 lakh (Rs.Twenty one lakh eighty thousand only) within a period of 16 weeks in this Court. On such deposit, the suit shall stand transferred to the list of commercial causes with usual directions to file written statement, discovery and inspection. Needless to state that if the amount is not so deposited, further consequences in law would follow. (S.C.DHARMADHIKARI, J.)