1 sj158.ss392 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 158 OF 2009 in SUMMARY SUIT NO. 392 OF 2009 Jankalyan Sahakari Bank Ltd .. Plaintiff vs Mrs Radha Duru Lakhani Defendant Mr.A.S.Kamath i.b.Mr.V.S.Deshpande for Plaintiff Mr.H.Toor i,b Mr.P.Panjabi & Co for Defendant CORAM: S.C.DHARMADHIKARI, J DATED: 9th September, 2010 P.C. 1. The plaintiff-bank has filed this Summary suit seeking a decree in the sum of Rs.1,83,416.93 as per particulars of claim Annexure I to the plaint with interest. 2. It is stated that the loan amount is Rs.1,19,000/-. The 2 sj158.ss392 loan is domestic loan given to the defendant. The defendant as and by way of security pledged fixed deposit receipts which are in the sum of Rs.1,41,000/-. On the same day in pursuance of an agreement and a written contract a demand promissory note was executed in favour of the bank. It is stated that the loan was outstanding and there was no question of the security being enforced because, the demand was raised for repayment of the sums. Further, the cause of action is on the basis that the demand promissory note was executed but, was not honoured. In such circumstances,the suit is maintainable on a written contract and in any event on demand promissory note under Order XXXVII of the Code of Civil Procedure. There is a reason why the plaintiff has stated in the plaint that the defendant is yet to repay the amount because, the correspondence prior to the suit shows that on demand being raised the defendant raised a plea that fixed deposit receipts are permitted to be prematurely encashed. If there was a banker's lien, then, unless the loan was repaid the bank would not have agreed to prematurely encash the same and pay the sum thereunder to the defendant. It is for this reason that 3 sj158.ss392 Mr.Kamath appearing for the plaintiff emphasised that the suit is maintainable as a Summary Suit and merely because the plaintiff states that the loan was secured by security of fixed deposit receipts the suit does not go out the purview of the said provisions. Further and in any event, when the suit is also on demand promissory note executed by the defendant,then the requirement stands complied with. 3. On the other hand, the defendant in her affidavit-in- reply contends that the suit claim is clearly time-barred. It is urged that the suit claim arises out of non-repayment of loan. On own showing of the bank total loan sanctioned as per their annexures is Rs.1,19,000/- that is sanctioned on 9th March, 2005. The demand promissory note is also dated 9th March, 2005. Fixed deposit receipts are issued on 27th December, 2002 and 18th February, 2003. They would have matured on 27th December,2005 and on 18th February, 2006 respectively as the period was on 36 months. However, they were prematurely encashed and if the date of encashment is stated to be 9th October,2005, the institution of the suit on 18th 4 sj158.ss392 December,2005/24th February, 2009 is clearly beyond the period of limitation. Therefore, taking any dates into consideration the suit claim is beyond limitation. It is the urged that once the bank permitted premature encashment of the fixed deposit receipts then the loan is deemed to have been repaid. If that was not the position, the statement of loan account would not have carried entry "closure interest" on 10th October,2005. All this according to Mr.Toor raises a triable issue and therefore, the defendant is entitled to unconditional leave to defend. 4. After having perused these materials I am in agreement with Mr.Toor that the defendant has raised a triable issue. In so far as plea of limitation is concerned,what has been urged in para 3 of the affidavit-in reply would show that after the fixed deposit receipts were prematurely encashed then their date of maturity would not be of significance prima facie. Further, if the period is reckoned from the demand promissory note then as well as the claim would be not be within limitation because, the relevant details in that behalf are not 5 sj158.ss392 forthcoming prima facie. Lastly, if it is taken that premature encashment is stated to be of 10th October, 2005 then also the filing of the suit in December, 2008/February, 2009 prima facie raises a triable issue of limitation. It is not necessary to go into these aspects in further details nor given a final finding. Suffice it to say that it raises triable issues. 5. If one considers the merits, even there, in absence of any rejoinder affidavit to controvert the reply that has been placed on record together with annexures would go to show that until and unless account and relevant entries are proved it would not be possible to hold that the loan has been repaid or not. That can only done at the full fledged trial. In these circumstances, triable issues are raised and the defendant is entitled to unconditional leave. Summons for Judgment is therefore dismissed. Suit is transferred to the list of commercial causes with usual directions to file written statement, discovery and inspection. S.C.Dharmadhikari, J