1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.527 OF 2007 IN SUMMARY SUIT NO.2049 OF 2007 HEMCHAND KESHAVJI (HUF) THROUGH HIS KARTA SHRI HEMCHAND KESHAVJI GADA ..PLAINTIFF VS. M/s. J. GALA ENTERPRISES & ORS. ..DEFENDANTS Mr. Pratap Sampat i/b Mr.P.B.Gada for the Plaintiff Mr. A.Y.Sakhare with Nikita Trivedi i/b YKS Legal for Defndant No.1 CORAM: Smt. ROSHAN DALVI, J. DATED: 25 th March, 2009 P.C.: 1. The Plaintiff's suit is upon two loan receipts both dated 12.07.2001. The first loan receipt is for Rs.2,75,000/- payable with interest thereon at 1.5% per month. The other loan receipt is for Rs.3,00,000/- with similar interest. The principal sum of Rs.3 lacs on the second receipt has been returned. 2 2. The execution of both the loan receipts is not disputed. The loan receipts show the confirmation that under those transactions the amounts stated in the receipts have been received. They also specify the rate of interest and the fact that the amounts has been credited to the account of the Defendants, pursuant to which the receipts have been issued. The receipts therefore, show an implied promise to repay the amount. 3. The Plaintiff has not been paid the interest on the loan receipt of Rs.3 lacs and the principal as well as the interest on the loan receipt of Rs.2,75,000 /- . Hence this suit is filed for recovery of only the interest on the loan receipt of Rs.3 lacs from the date of the execution of that receipt until the date of repayment of the amount on that receipt and for the principal as well as the interest on the loan receipt of Rs.2,75,000 /- . 4. The amount having been admittedly received under the aforesaid two loan receipts, the defense on merits is that the principal amount of Rs.2,75,000/- has also been repaid in cash. No particulars of the repayment are shown. The amount on the other loan receipt of Rs.3 lacs has been repaid by cheque. It is not possible to accept the defence that 3 cash amount has been paid in repayment of the entire principal amount when the loan receipt showing the particulars has been signed by the Defendants and the earlier amount paid by cheque. That defence is completely moonshine and deserves to be rejected. 5. Aside from the merits, Defendants have contended that the summary suit is not maintainable on the loan receipts as they are not promissory notes. The receipts show not only the receipt itself but the credit of the amount in the account of the Defendants pursuant to which the receipt is issued. It also specifies the rate of interest. The case of Jyotsna K. Valia Vs. T.S.Parekh & Co. 2007(4) Mh.LJ, 517 FB, shows inter alia the concept of the written contract and implied terms of the contract. The written contract need not be the one signed by both the parties. In this case Plaintiffs have accepted the loan receipts as documents executed by the 1st Defendants' partner. The terms of the documents can be gathered from those documents. It cannot be accepted that the Defendant, which is a commercial firm, would receive the amounts and not have the obligations to repay the amount. Even under quasi contract the amount admittedly received is liable to be returned. The promise to repay is therefore implied in such contract. Upon discussion in paragraph 17 of the Judgment in the case of Jyotsna the expression 4 ''implied term of the contract'' came to be set out upon considering the jurisprudence in that regard. Paragraph 19 of the judgment specifically lays down 5 tests showing the implied terms of written contract. Those terms are satisfied in the case of commercial transactions with regard to the promise to repay the amount admittedly received. Hence as a written contract with an implied term of promise to repay the amount received the suit upon the two loan receipts is maintainable as a summary suit. 6. The Defendants are a business undertaking and hence the loan must be taken to have been given to the Defendants for the business purposes, such receipt having been executed by the partner of Defendant No.1 firm. Hence the provisions of Bombay Money Lenders Act, would not apply to this case. 7. There is no substantial defence to the Plaintiff's action. 8. The Defendants shall deposit the entire principal amount of Rs.2,75,000 /- in this court within four weeks. Upon such deposit the Defendants shall be entitled to defend the suit by filing their written statement which, if the amount is deposited shall be filed within 30 days of the deposit. The amount if deposited, shall be invested by the Prothonotary & 5 Senior Master of this Court in any nationalised bank initially for a period of 37 months. 9. Summons for Judgment disposed of accordingly. (Smt. Roshan Dalvi, J)