1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 287 OF 2007 IN SUMMARY SUIT NO.614 OF 2007 Phoolchand Sampat Pasi .. Plaintiff versus Hawaldar Subans Yadav .. Defendant ... MS.M.M. Malar for the plaintiff Mr.K.A.Khan i/b Akhilesh S. Dubey for defendants. CORAM : D.G. KARNIK, J DATED : 12th June 2009 P.C:- 1. By an order this Summons for Judgement was dismissed in default of appearance in the morning. However before the order was typed and signed it is mentioned at 3.00 p.m. by the learned counsel for the plaintiff in the presence of learned counsel for the defendant and by consent the Summons for Judgement is restored. By consent, taken up for hearing forthwith. 2. This Summons for Judgement is taken out by the plaintiff in a suit filed for recovery of money. In the 2 plaint, plaintiff has pleaded that he and defendant know each other well and that at the request of the defendant, he advanced to the defendant a hand loan of Rs.1,50,000/- in November 2002. The defendant executed a writing agreeing to repay it in 11 months. The defendant repaid only Rs. 24,000/- and balance Rs.1,26,000/- was due. The defendant executed another writing on 12th November 2003 agreeing to pay Rs.1,26,000/-. As he did not pay, the plaintiff has filed the suit. 3. As no rate of interest was agreed upon plaintiff has claimed only a principal sum of Rs.1,26,000/- together with interest from the date of the suit u/s.34 of the Code of Civil Procedure. 4. The defendant has opposed the Summons for Judgement on two grounds. Firstly he has contended that the suit is not within limitation and secondly has contended that the suit is barred by the provisions of Money Lenders Act. The original loan was advanced on 11th November 2002 and was repayable within 11 months. During that period, the defendant paid only Rs.24,000/- and executed a fresh writing on 12th November 2003 agreeing to pay the balance of Rs. 1,26,000/- with interest within 11 months. Copies of two writings are at Exhibit-A and C respectively. By the writing dated 12th November 2003, plaintiff had granted 3 further 11 months time and defendant had agreed to repay the loan within 11 months and that period expired on 11th October 2004. The suit has been filed on 12th February 2007 i.e. within three years. The defence that the suit is barred by limitation therefore has no merit whatsoever and does not give rise to any triable issue. 5, As regards the suit being barred by Money Lenders Act it may be noted that the initial loan agreement did not provide for any interest. Second loan agreement also do not provide for any specific interest but interest was to be agreed subsequently. No such agreement had taken place. Thus, it was a money advanced without any interest. This supports the contention of the plaintiff that the money that the money was advanced to the defendant as friendly loan. The defendant has not produced any evidence to show that the plaintiff is carrying out money lending business and had lent money with or without interest to anybody else other than him. The defendant has not produced any material to show that the plaintiff is a money lender. The defence that the suit is being hit by the provisions of Money Lenders Act has therefore no merit and does not give rise to any triable issue. 6. Thus, in my view, the defence raises no triable issue and the defences are mere moonshine. Plaintiff is therefore 4 entitled to a decree forthwith. However only by way of a concession, I am inclined to grant leave to the defendant to defend the suit conditional upon his depositing the entire principal sum in the Court within four weeks. Hence, I pass the following order. 7. The defendant is granted conditional leave to defend the suit subject to depositing in the court a sum of Rs. 1,26,000/- forthwith within four weeks. On such deposit being made, plaintiff is permitted to withdraw the amount deposited by filing a personal undertaking to redeposit it in the event so ordered by the court. On deposit being made by the defendant, suit shall stand transferred to the list of commercial causes. Defendant shall then file written statement within eight weeks. In the event the defendant fails to deposit the money within 4 weeks, the plaintiff shall be entitled to apply for a decree. 8. Summons for Judgement is disposed of accordingly. (D.G. KARNIK, J)