1 sj389-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.389 OF 2009 IN SUMMARY SUIT NO.1118 OF 2009 Bhikaji Shankar Dabhade .. Plaintiff Vs. Mr.Rahul Dada Mane .. Defendant Mr.Kunal Bhanage for the plaintiff Mr.M.J.Devani for the defendant CORAM : S.C.Dharmadhikari, J. DATE : December 8, 2010 P.C. : 1. The plaintiff has filed this summary suit on the basis of dishonour of a cheque. It is stated that there was a request made by the defendant for a friendly loan and the plaintiff lent and advanced to him a sum of Rs. 1,50,000/-. The defendant gave a post dated cheque of Rs.1,50,000/-bearing no.521845 dt.16.2.06 drawn on Punjab National Bank, Lalbaug Branch. Copy of which is at Annexure 'A'. That cheque was dishonoured on presentation on 22.2.06 with the remarks 'funds insufficient'. 2. After the dishonour of the above cheque, plaintiff demanded the money by 2 sj389-09 issuing a letter signed by his advocate but there was no response. There was another letter addressed and finally, the defendant responded and stated the true facts are that a loan of Rs.1,50,000/- was taken from the sister of the plaintiff Smt.Aparna Sakharkar and as by way of security, the blank cheque was handed over. That loan was repaid with accrued interest on 17.5.2004 by cheque no.9940 for Rs.153000 drawn on Apna Sahakari Bank Ltd., Parel Branch, Mumbai. Thereafter, repeatedly, the defendant called upon the plaintiff to return the cheque which request has not been accepted. 3. It is this version which is placed on affidavit and in addition the defendant has set out that the cheque was blank and does not bear his signature because his signature has undergone a change. In para 5 of the affidavit in reply this is what is stated. "5. With reference to paragraph 2 of the plaint, I deny that against the legal liability, I have issued a post dated cheque being cheque no.521845 dated 16th February, 2006 drawn on Punjab National Bank, Lalbaug Branch, Mumbai in favour of the plaintiff as falsely alleged. I deny that there was any due understanding between us that the said Cheque will be cleared on presentation in the Bank as falsely alleged. I say that in fact the Cheque No.521845 was a blank cheque with my signature only and issued in the year 2003 and lying with the Plaintiff as and by way of security in respect of some earlier transactions with third party in which the plaintiff was a middle man. I say that being known to 3 sj389-09 me I did not doubt the bonafides of the plaintiff and to my utmost surprise he has misused the said blank cheque no.521845 by inserting his name, date and amount in the said Cheque without my knowledge thereby playing a fraud upon me as in fact I have not taken any money by way friendly loan from the plaintiff as falsely alleged. I say that it is very pertinent to note that till 14th November, 2004 I used to sign my Cheques as "MANE RAHUL" and from 14th November, 2004 I have started signing my cheques as "RAHUL MANE". Hereto annexed and marked Exhibit-'1' is a Certificate from my Bank viz. Punjab National Bank, Lalbaug Branch, Mumbai stating that the Book containing the said Cheque No. 521845 was issued 16th September, 2003 to me. I say that thus I deny that I have signed the cheque in question on 16th February, 2006 in favour of the plaintiff for Rs.1,50,000/- as falsely alleged as it does not bear any valid signature as on the date of the said cheque. I crave leave to refer to and rely upon the records of the Bank regarding change of my Specimen signature when produced." 4. In rejoinder, the plaintiff states the cheque was issued and duly signed by the defendant. The plaintiff accuses defendant for being dishonest to the extent of changing his signature after issuing the cheque. 5. After the matter was heard for some time, I called upon the plaintiff to produce the original cheque but it is stated that the same is filed in the proceedings under section 138 of the Negotiable Instruments Act, 1881. 4 sj389-09 6. Having perused the version of the parties, I am of the opinion that the fact the liability is dispute in addition to the signature and there is a version with regard to the plaintiff trying to link a transaction with his sister and raised not only in the reply to the advocates notice but in the affidavit in reply to the Summons for Judgment as well, triable issues arise for consideration. 7. For these reasons, there will be unconditional leave to defend. Suit is transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. Summons for Judgment is disposed off in these terms. ( S.C.Dharmadhikari, J. )