1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 176 of 2008 IN SUMMARY SUIT NO. 349 of 2008 Sudhir Goradia .. Plaintiff versus Subhash Agarwal & Anr. .. Defendants ... Mr.Tushar Garodia for the plaintiff. Ms.L.R. Temkar i/b Kalyani G. Parmar for defendant nos.1 and 2. CORAM : D.G. KARNIK, J DATED : 30th March 2009 P.C.: 1. Heard learned counsel for the parties. 2. Plaintiff has filed this suit for recovery of money due under four bills of exchange, xerox 2 copies of which are annexed as Exhibit A to D to the plaint. Summons for Judgement was taken out and served on the defendants. By filing an affidavit in reply, the defendants have contested the Summons for Judgement and prayed for an unconditional leave to defend. 3. According to the plaintiff, he lent and advanced to the defendant no.1 a sum of Rs.2,00,000/- on 31st December 2004. The defendant no.1 drew four bills of exchange for Rs.50,000/- each payable on demand. The bills were accepted by the defendant no.2. Hence both the defendants are liable for the repayment. The defendants did not make the payment as per the plaintiff’s demand and when the bills were presented. The plaintiff has therefore filed this suit for recovery on the principal sum of Rs.2,00,000/- and interest thereon @ 18% p.a. 4. The defendants filed a joint affidavit in reply dated 18th June 2008 denying their liability. The defendants raised the following defences. i) The suit is not properly valued and plaint is not properly stamped. Section 18 of the Bombay Court Fees Act has not been complied. 3 ii) There was no agreement to pay interest and therefore plaintiff is not entitled to claim interest. iii) Plaintiff is a money lender and is carrying on business of money lending without a valid licence under the sub-section (5) of the Bombay Money Lenders Act. He had also lent some money to others which has resulted in a suit bearing Suit no.220 of 2008. As the plaintiff does not possess licence under the Bombay Money Lenders Act the suit is not maintainable. 5. As regards the court fees, I notice that the office has computed the court fee separately in respect of each of the bill of exchange as required under section 18 of the Bombay Court Fees Act and has certified payment of proper court fee. I find no error in the computation of the court fees and acceptance thereof by the office. Hence, this objection does not survive. 6. As regards interest, it is claimed u/s.80 of the Negotiable Instruments Act which provides for charging of interest at 18% p.a. Interest has been 4 claimed @ 18% p.a. and no more. The defence of interest being not payable therefore also does not survive. 7. As regards the claim that the plaintiff is a money lender, the defendants have not adduced even a prima facie evidence to show that plaintiff is carrying on business of money lending. It has been held by this court that two or three transactions of giving of a loan by itself would not amount to carrying on business of money lending. In the present case, even according to the defendant apart from the suit loan, plaintiff had lent money to one more person which resulted into a Suit no.220/08. Ofcourse, this fact is denied by the plaintiff by filing a rejoinder but even if it is assumed that this fact is true, it amounts to only two transactions of grant of loan including the suit transaction. Therefore it cannot be said on the basis of this alone that defendant is a money lender. Even otherwise as per the definition of loan contained in section 2(9)(f1) of the Bombay Money Lending Act an advance of any sum of money exceeding Rs.3,000/- made on the basis of a Hundi (written in English or any Indian language) is excepted from the definition of a "loan". The present loan in question was advanced on the basis 5 of a bill of exchange and hence the suit transaction is not hit by Bombay Money Lenders Act. 8. The receipt of money under the bill of exchange as well as the signatures and execution of the bill of exchange have not been denied by the defendants. In my view, therefore, the defendants have not made out any good defence to the suit. However only by way of concession to the defendants, a leave to defend can be granted only on deposit of the entire amount claimed in the suit. Hence, I pass the following order:- O R D E R . The defendants are granted conditional leave to defend the suit on depositing in the court a sum of Rs.3,03,167/- within a period of four weeks. On deposit of money the suit shall stand transferred to the list of commercial causes. The defendants shall then file the written statement within 12 weeks. (D.G. KARNIK, J)