:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.696 OF 2007 IN SUMMONS FOR JUDGMENT NO.452 OF 2005 IN SUMMARY SUIT NO.1272 OF 2005 Shah Hansraj Vajpar and Sons and ors. ....Appellants. Vs. Sanjay Navinchandra Gogri. ....Respondent. Mr.H.V.Chande for the Appellants. Mr.P.M.Shah for the Respondent. CORAM :SRI.R.M.S.KHANDEPARKAR & SRI.R.S.MOHITE, JJ. DATE : 3rd April,2008. PC : 1. Heard. 2. The appellants challenge the order dated 21.8.2007 passed by the learned Single Judge in Summons for Judgment No.452 of 2005 in Summary Suit No.1272 of 2005 whereby the suit has been decreed on account of failure to make out any case for defence by the appellants. The sole contention on behalf of the appellants is that the claim of the respondent-plaintiff was time barred and the acknowledgments which are sought to be relied upon by the respondent were obtained after the expiry of the period of limitation. 3. The learned Single Judge after considering the entire materials placed on record has clearly arrived at :2: a finding that there has been clear confirmation of the balance amount within the period of limitation by the appellants- defendants regarding the outstanding liability of the appellants and therefore, there is absolutely no substance in the contention of the appellants regarding the bar of limitation. The said finding is clearly borne out from the record. 4. It is the case of the respondent-plaintiff that the appellants borrowed sum of Rs.5,20,000/- on 2.4.1992. It was agreed between the parties that same shall be repayable with interest at the rate of 18% per annum and further that whatever interest remains unpaid at the end of the every year the same shall stand capitalised and the interest would be calculated in the so capitalised amount and will be carried forward to the next year. The specific pleading in the plaint duly supported by the documentary proof clearly discloses periodical acknowledgements within the period of limitation regarding the balance amount due at the end of every financial year by the appellants to the respondent. All the specific averments in that regard in the pleadings supported by the documentary proof are sought to be answered by only contention that one of the acknowledgment which has been given by the appellants was at the instance of their Advocate and the same was for the purpose of income tax problem. What was income tax problem and in what way the acknowledgment would :3: benefit the parties has not been explained at any time. In that regard, there are absolutely no pleadings nor any fact disclosed in the affidavit or in the reply or in the affidavit of the Advocate who claims to have persuaded the appellants to give said acknowledgment. Once it is not in dispute that certain amount was borrowed by the appellants from the respondent and at the same time the appellants are unable to place any document on record which could reveal the repayment and the respondent-plaintiff has placed on record periodical acknowledgments of the amount due duly signed by the appellants, it is apparent that the appellants have no bonafide defence in the matter and hence, no fault can be found in the impugned judgment and order decreeing the suit. 5. In the course of the arguments, the learned Advocate for the appellants made the submissions which were totally contrary to the record. It was sought to be submitted on behalf of the appellants that last three acknowledgments were obtained by the respondent on the same day. When the learned Advocate was asked to point out the statement of fact in that regard, if any, made by the appellants in the affidavit before the the learned Single Judge, apart from taking nearly half an hour to go through the records, he could not point out any such statement in the affidavit nor which could reveal that the three acknowledgments were obtained on :4: the same day. Repeatedly arguments were advanced only on the point that the Advocate having standing practice of 43 years had filed an affidavit stating that the acknowledgment was obtained at his behest and only to avoid some income tax problem and therefore, he ought to have been believed and at the most conditional leave could have been granted. One fails to understand as to how to believe an Advocate who does not hesitate to file an affidavit stating that he had convinced his client to execute false acknowledgments to save some income tax problem. 6. Inspite of giving sufficient time to argue the matter, the learned Advocate for the appellants has not been able to point out any finding in the impugned judgment to be contrary to the records nor has been able to make out any case as such for the appellants in defence to the claim put forth by the respondent. 7. Though the appeal is a statutory right, it is to be exercised when there is some case to challenge the order of the trial court. The right is not to be exercised in abuse thereof. If the appellants are not in a position to make out any case for defence in answer to the plaintiff’s case in a summary suit, then filing of appeal would be sheer waste of court time. Any statutory right is to be exercised not merely because it is available in terms of statute books but it must be :5: justifiable to be exercised. There cannot be exercise of such right for the sake of exercise thereof. 8. In fact, the present appeal is sheer waste of time of the court. In the circumstances, the appeal is liable to the dismissed with exemplary costs. 9. The appeal is therefore, dismissed with exemplary costs of Rs.5,000/-. The costs shall be deposited by the appellants in the court within ten weeks from today. (R.S. MOHITE, J.) (R.M.S. KHANDEPARKAR, J.)