1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. SUMMONS FOR JUDGMENT NO.374 OF 2008 IN SUMMARY SUIT NO.3747 OF 2002 Dr.(Mrs.) Aparna Ashish Kamat nee Dr.(Ms.) Aparna Ramchandra Walvekar Indian National, residing at 8181 EL Mundo, Apt 1906, San Marin Apts., Houston, Texas 77054, U.S.A. .... Plaintiff vs 1 Troika Construction Company a partnership firm having its office at 20, 1st Floor, Broadway Shopping Centre, Dadar, Mumbai 400 014 2 Arun Balkrishna Chitale of Mumbai Indian Inhabitant, residing at Rustom Mansion, Edenwalla Road, Matunga, Mumbai 400 019 3 Shreyas Arun Chitale of Mumbai, Indian Inhabitant, residing at Rustom Mansion, Edenwalla Road, Matunga, Mumbai,400019, 4 Dr.Rohan Walvekar of Bombay Indian Inhabitant, residing at 62, Suraiya Apartments, Sir Pochkanwala Road, Worli, Mumbai 400 018. ... Defendants Mr.Pradeep Sancheti with Mr.Vaibhav Sugadare i/b. Yasmin Bhansali & Co. for the plaintiff. Mr.Mannadiar i/b. M/s.Mannadiar & Co. for the defendants. 2 CORAM: ANOOP V. MOHTA, J. DATE : 12th October, 2009 P.C.: 1 The plaintiff has filed the Suit for recovery of loan amount of Rs. 10,70,350/- as per the Particulars of claim and further interest thereon. Admittedly, there are three Summary Suits filed, based upon the alleged loan by the plaintiff during the period 1991 to 1994. This summary Suit is filed in the year 2002 and the Summons for Judgment in the year 2008. 2 This was a second Summons for Judgment as earlier one was withdrawn. The present Suit is identical to one filed by plaintiff’s brother Dr.Walvekar including the pleadings so raised by the parties. 3 After considering the rival contention and material placed on record, prima facie it is clear that the alleged loan claims are time barred. The rate of interest is not corroborated by Exhibit “H” and/or alleged balance confirmation, Exhibits “I” and “J”. There is no nexus or connection with the alleged loan and the TDS Certificates. Therefore, the submissions with regard to the acknowledgement and/or extension of limitation of loan receipt need detail trial and inquiry. 4 The Suit is admittedly filed beyond three years from the date of the loan. 5 In a similarly situated matter between the parties/brothers in Summons for Judgment No.951/2003 in Summary Suit No.3095/2002, the Court has observed 3 by granting unconditional leave to defend the Suit as under: “3 Admittedly, the suit has been filed beyond three years from the date of the loan. The defendants inter alia contended that the suit is barred by limitation. The acknowledgement Exhibit H to the plaint is not made within three years so as to extend the period of limitation under Section 18 of the Limitation Act. Learned Counsel for the plaintiff relies on the judgment in Hiralal vs. Badkulal reported in AIR 1953 S.C. 225 to contend that the acknowledgment creates a fresh period of limitation. The acknowledgement in that case was of mutual settlement of accounts and the acknowledgement of the settlement of account was in the books of accounts itself. It was in the light of this, the Supreme Court held that the suit was covered under Article 64 of the Limitation Act and was not barred by limitation. In the present case, there is not even an averment that mutual accounts were maintained between the parties. The suit is for recovery of the loan.” 6 In view of above also, I am inclined to observe that the defence as raised is not sham or bogus and raises triable issues. 7 Resultantly, the defendants are granted unconditional leave to defend the Suit. The Suit stands transferred to the list of commercial causes. The defendants to file written statement within a period of eight weeks. 8 The Summons for Judgment is accordingly dismissed. No order as to costs. (ANOOP V. MOHTA, J.)