- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.313 OF 2005 IN SUMMONS FOR JUDGMENT NO.790 OF 2000 IN SUMMARY SUIT NO.2232 OF 2000 ... M/s.H.Kantilal & co. & ors.. ...Appellants v/s. Gurdev Singh Bansal & Ors. ...Respondents ... Mr.J.P.Sen with Ms.K.A. Shah i/b A.G.Shah for the Appellants. None for the Respondents. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 26TH FEBRUARY, 2009 P.C.: 1. This Appeal takes exception to the order dated 23rd August, 2004 passed by the learned single Judge of this court in Summons for judgment No.790 of 2000. By that order the learned single Judge has granted conditional leave to defend to the - 2 - Appellants-Defendants. 2. The relevant facts are that the present Respondents filed a Summary Suit No.2232 of 2000 claiming that the Defendant No.1 is a partnership firm and Defendants Nos. 2 to 4 are partners of that firm. In paragraph 3 it was stated that the Defendants were in need of money in the year 1993. Plaintiff No.1 advanced them an amount of Rs.6 lakh as a loan. It was agreed that the amount of Rs.6 lakh will be repaid after four years by the Defendants and interest will be at the rate of 25% per annum. According to the Plaintiffs, two types of documents were executed, one was the demand note, copy of which is at Exh.A, whereby the Defendants agreed to pay an amount of Rs.1 lakh to the Plaintiff on 10-9-1995 and an amount of Rs.11 lakh on 10th September, 1997. Then, there were six documents, copies of which were at Exh.B-1 to B-6. According to the Plaintiffs, by those documents also the Defendants agreed to repay Rs.2 lakh each on 10-6-1997. According to averments in the plaint, the reason for giving a separate writing in addition to document at Exh.A is to enable the Defendants to pay the amount earlier. The Plaintiffs also alleged that - 3 - in repayment, a cheque of Rs.3 lakh was given by the Defendants, but that cheque was dishonoured. The suit was filed not for recovery of the amount of dishonoured cheque, but for the entire amount of Rs.12 lakh with interest. Summons for judgment was taken out in Summary suit, which was summons for judgment No.790 of 2000. The Defendants firstly contended that promissory note on which the suit is based are not properly stamped. It was also contended that there is discrepancy between the document at Exh.A and documents at Exh.B-1 to B-6. It was also contended that the cheque of Rs.3 lakh is not drawn by Defendant No.1 in favour of the Plaintiffs. It was claimed that the Plaintiffs are not even relying on this dishonoured cheque in the list of documents. It was also claimed that the Defendants Nos.3 & 4 were never the partners of Defendant No.1. It was claimed that the documents are signed by the Defendants in different transactions of supply of goods and that transaction was over. A rejoinder was filed on behalf of the Plaintiffs. It was disputed that the promissory notes are not properly stamped. It was also denied that the Defendants Nos.3 & 4 are not the partners, but no documents are produced in favour of their - 4 - claim that the Defendants Nos.3 & 4 are the partners of Defendant No.1. Statement that the dishonoured cheque is not relied on by the Plaintiffs is also not denied. The discrepancy in the documents at Exh.A and Exh.B-1 to B-6 are also not explained. The summons for judgment was decided by the learned single Judge, as observed above, by order dated 23-8-2004. The learned single Judge noted that it was the contention raised by the Defendants that the promissory notes are not properly stamped, but that contention has not been decided. The learned single Judge held that the Defendants are entitled to conditional leave to defend. It was directed that on their deposit of Rs.7 lakh, they will get leave to defend. 3. We have heard the learned counsel appearing for the Defendants/Appellants. None appears for the Plaintiffs/Respondents. 4. The case of the Plaintiffs in the plaint is to be found in paragraphs 3, 4 & 5 of the plaint. They read as under:- 3. In 1993 the Defendants were in financial difficulties and as such approached the - 5 - Plaintiff No.1 to advance to them a sum of Rs.6,00,000/- as and by way of loan and that they would repay the same with double the amount within a period of four years, the interest being 25% per annum. It was further agreed as a matter of convenience that in case they are able to repay the amount earlier they would do so. As such the Plaintiff No.1 paid a sum of Rs.6,00,000/- to the Defendants on 21-9-1993 and the Defendants Nos. 2 to 4 have given a writing to that effect in the form of a demand Note. Hereto annexed and marked Exhibit A is a copy of the said Demand note. 4. The Defendants also executed writings on six stamp papers of Rs.10/- each promising to pay Rs.12,00,000/- on or before 10-6-1997 to either of the Plaintiffs. Hereto annexed and marked Exhibits "B-1" to "B-6" are the copies of the six writings on six stamp papers for Rs.10/- each. 5. The Plaintiffs state that the object in giving separate writings on six stamp papers was with a view to enable the Defendants to repay the amount of Rs.6,00,000/- earlier so that the Defendants can receive back the writings as and when the repayment is made. The Plaintiffs state that the amount of the loan is as a whole. 5. According to the Plaintiffs, thus, an amount of Rs.6 lakh was advanced on 21-9-1993. That amount was to be repaid on 10-6-1997 and on the date of repayment i.e. 10-6-1997 the amount will be Rs.12 lakh. In support of this claim the document relied on was the document at Exh.A which is styled as demand note. Perusal of that document shows that the Defendants agreed to repay Rs.12 lakh to the - 6 - Plaintiffs. Rs.1 lakh was to be paid on 12th September, 1995 and the balance amount of Rs.11 lakh was to be paid on 10th June, 1997. It is the case of the Plaintiffs that the document at Exh.A and documents at Exh.B-1 to B-6 are in relation to the same transactions. Perusal of the documents at B-1 to B-6, however, shows that the entire amount of Rs.12 lakh was repayable on 10-6-1997. This discrepancy was pointed out in the affidavit in reply filed by the Defendants, but the learned single Judge in the order has not dealt with this controversy at all. In the affidavit in reply filed in paragraph 5, a categorical statement was made on behalf of the Defendants that Defendants Nos. 3 and 4 are not the partners of Defendant No.1. In the rejoinder, all that the Plaintiffs said is that they denied that the Defendants Nos. 3 & 4 are not the partners. They did not produce any document on record to show that the Defendants Nos.3 and 4 are partners of Defendant No.1. However, the learned single Judge even without referring to this aspect of the matter decided to grant conditional leave to defend to Defendants No.3 & 4. An objection was raised in the affidavit that the promissory notes are not properly stamped. The Plaintiffs in the rejoinder denied this fact. The - 7 - learned single Judge observed in his order that this contention was already raised, but this has not been decided by the learned single Judge. 6. In our opinion, in these circumstances and in view of the defences raised by the Defendants, this is the case for grant of unconditional leave to defend to the Defendants. In our opinion, therefore, following order would meet the ends of justice. O R D E R The order dated 23rd August, 2004 passed in Summons for Judgment No.790 of 2000 is set aside. That summons for judgment is disposed of. The Defendants are granted unconditional leave to defend the suit. Defendants have already filed written statement. It be taken on record. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)