1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.90 OF 2009 IN SUMMARY SUIT NO.336 OF 2009 Ahmed M. Rawjee .. Plaintiff Versus Sadruddin Nasa N. Daya & Ors. .. Defendants Mr.Ahmed M. Rawjee in person Mr.Chetan Kapadia with Ishwar Nankani i/b. M/s.Nankani & Associates for defendant Nos. 1 to 3. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th August 2009. P.C.: 1] This is a summons for judgement in a summary suit which is instituted by the plaintiff appearing in person for recovery of a sum of Rs. 10,59,825/- as set out by the plaintiff in para 12 of the plaint. 2] In the plaint several sentences and lines have been scored off and corrected at several places by the plaintiff appearing in person. However, what is deducible from the same is that the amount claimed is a liability arising out of promisory notes which are annexed to the plaint as 1 Annexures C, D, E and F. The plaintiff submits that there is no denial of the fact that the promisory notes have been executed by the defendants. However, some meagre amount of interest has been paid but even that sum has been withheld subsequently. It is urged by the plaintiff that the suit claim fall under Order XXXVII of C.P.C., inasmuch as the promisory notes are the foundation based upon which the liability arises and the sums are thus payable. Even the liability to pay interest arises from the same. He places reliance upon correspondence and letters to demonstrate that the amount is due and payable to him. In these circumstances, according to him, defence as raised is frivolous and vexatious and does not make out any case for grant of leave to defend the suit. 3] On the other hand, Mr.Kapadia appearing for defendants invites my attention to the affidavits in reply filed and has contended that unconditional leave be granted to defend the suit to each of the defendants on account of the following:- (a) The summary suit is filed on the basis of four purported promissory notes being Exhs.C, D, E and F to the plaint. 1. The same are not stamped in accordance with law; 2. This defendant is alleged to be liable under three of the said purported promissory notes i.e. Exh.C, D and F., but the decree which has been sought by the 1 plaintiff in the suit is for the aggregate amount of all the four promissory notes and alleged interest thereon, as set out hereinbelow:- “That the defendants be ordered and decreed to pay to the Court jointly and severally the said sum of Rs.6,00.000/- and a sum of Rs.4,59,825/- as interest upto March 2009 totalling to Rs. 10,59,825/- as on date of filing of the suit. The plaintiff further pray the defendants to pay to the Court all the costs of the suit of the Creditor amounting to Rs.25,630/-. The plaintiff request all further payments of interest of Rs.4,000/- per month and Rs.2,500/- per month as debtors to the Court beyond March 2009 till the final realisation of the suit by the High Court including final additional costs. 3. Though a purported promissory note indicates rate of interest @ 12%, another @ 15% and another two no rate of interest, the plaintiff seeks interest at alleged orally agreed rates of interest. 4. So far as the promissory note at Exh.C is concerned, the same does not mention any rate of interest payable. Whether the present summary suit can be for the said interest. Also there is no proof of any written contract. Though the promissory note is 1 dated 15th May 2007, the plaintiff has claimed interest from the year 1999 and hence the summary suit is misconceived; 5. So far as the promissory note at Exh.D is concerned, the same does not mention any rate of interest payable nor does it bear any date. 6. So far as the promissory note at Exh.E is concerned, the same does bear any date though rate of interest is mentioned and claimed from the year 1999. If the plaintiff claims that the said promissory note is of the year 1999 then the same is time barred or at the highest the summary suit ought to be for this promissory note only. 7. So far as the promissory note at Exh.F is concerned, the same bears date as well as interest payable is mentioned. The plaintiff has claimed interest from the year 1999 which is not permissible and hence the suit is misconceived. 8. This defendant stattes that all the above promissory notes do not form a common cause of action for the present suit and hence on this ground alone the summary suit be dismissed with costs. (b) The claim of the plaintiff for interest from 1st August 1999 is time barred. 1 (c) This defendant states that as evident from Exhibits G, H and I, the plaintiff has claimed interest upon interest and, therefore, the captioned summary suit is hit by the interest Act and not maintainable as a summary suit. By doing so the plaintiff is attempting to capitalise interest on the alleged instalment on time which is not permitted. (d) This defendant is not the sole proprietor of M/s.Dawood & Co. (e) This defendant states that the present suit is bad for misjoinder of parties and causes of action as the defendant No.2 is nowhere connected with the issues arisen herein and the other respective defendants have nothing to do with the cause of action pleaded by the plaintiff against other defendants. 4] Mr.Kapadia submits that substantial portion of the claim is barred by limitation inasmuch as in a suit instituted in the year 2009, plaintiff claims interest from 1999. Further, the plaintiff is claiming amounts which are admittedly not due and payable inasmuch as some of the defendants have stated on oath that they are not signatories to the promisory notes in question and, therefore, they are not liable. My 1 attention is invited to the affidavits filed by Shailesh Daya and Shauheen Daya. Thus, according to the defendants, no case is made out for granting the summons for judgement and instead unconditional leave to defend the suit be granted. 5] In the peculiar facts of this case and when the defendants have pointed out sufficient cause for not being able to file their affidavits in reply earlier, the delay in filing the same is condoned and these replies are read in the matter. 6] The plaintiff has tendered written arguments and notes together with the authorities. In one of the affidavits he has purported to set out the particulars of his claim. According to him, the claim arises out of the four promisory notes under which amounts are due and payable. He submits that interest upto March 2009 is computed at Exh.2. Thereafter, further interest for April, May, June and July 2009 is also due and payable. He has also pointed out that interest at 6% on the principal amount of Rs.6 lakhs which is termed as capital by him is also due and payable. 7] Plaintiff has given a written note/ statement and firstly pointed out that the affidavits in reply are not filed in time by the defendants. That aspect of the matter is already dealt with by me. He has also invited my attention to certain case laws. 1 8] However, upon perusal of the Annexures to the plaint, what is apparent to me is that a promisory note dated 15th May 2007 of Rs.2 lakhs is annexed as Annexure C. This has a Revenue stamp on which the signature of the defendant No.1 appears. Exh.D is stated to be another pro-note which is signed by Shauheen S. Daya and there is a stamp at the right hand corner of the same. Exh.E is supposed to be a pro-note for Rs. 1 lakh and Exh.F is also a pro-note signed by first defendant. The rate of interest is mentioned in only Exh.E and F whereas at Exh.C and D, there is no reference to any interest or rate specified. Perusal of the plaint would reveal that the plaintiff has mixed up several issues. He refers to the sum of Rs.7 lakhs paid in 1997 on which interest was paid to him. He has also pointed out that some complaint was made to the police. He states that a sum of Rs.1 lakh was paid but the balance sum of Rs.6 lakhs with interest was due and payable for which the promisory notes in question have been executed. Thus, it is true that the plaint could have been better drafted but that is not reason enough to deny the relief. 9] The affidavits in reply raise the above defences and a perusal of the same would denote that execution of the documents has not been disputed. What is urged is that the same are not stamped in accordance with law and that interest is not payable. Further, it is stated that the claim for interest is time barred. 10] This is the defence that is raised by all the defendants, except one who has stated that he is not the signatory to any of the pro-notes. 1 11] I have heard the party in person at length. I have perused the written notes and the case laws that have been brought to my notice. From a perusal of the Annexures to the plaint, it appears that the defendants do not dispute that some amounts were lent and advanced by the plaintiff to the defendants. Defendants do not dispute that the amounts were to be repaid. They do not dispute, at least prima facie, that their signatures appear on these documents. Considering the fact that this is a suit filed by a senior citizen on a pro-note it was suggested to parties that the matter could be amicably settled. It was adjourned to enable the parties to do so. However, when it was stated that settlement is not possible, it is placed for orders today. 12] In my view, the plaintiff has filed this suit under Order XXXVII of C.P.C. on the documents stated to be pro-notes and in any event, acknowledgement of liability is in writing. According to him the Annexures were executed after receipt of the sum lent and advanced by him. While it is true that part of plaintiff's claim may be prima facie time barred, but the same is severable inasmuch as that is towards interest. Considering that the defendants seek liberty to make good the pleas raised by them on affidavit but at the same time, their signatures are appearing on the documents annexed to the same, so also prima facie, their liability to repay the principal sums being not disputed, interest of justice would be sub-served if this summons for judgement is disposed of by the following order:- 1 (a) On the defendants depositing in this Court Rs.4 lakhs within a period of twelve weeks from today, leave to defend the suit is granted and, thereafter, the suit shall stand transferred to the list of commercial causes with usual directions for filing written statement, discovery and inspection. In default, plaintiff would be entitled to apply for decree and take such steps to enable him to do so and permissible in law. (b) In the event the amount is deposited, the plaintiff is at liberty to apply for its withdrawal. On such application being made the same will be considered on its own merits and in accordance with law. (c) Summons for Judgement is disposed of. No costs. (S.C.DHARMADHIKARI, J)