1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.106 OF 2009 IN SUMMARY SUIT NO.820 OF 2007 Mr.Sudhir S. Mehta & Ors. ....Plaintiffs V/s. Kiritkumar J. Shah & Anr. ....Defendants Mr.Kapil Moye with Mr.K. Akhtar i/b Vigil Juris for the Plaintiffs. Mr.Pradip R. Kadam for Defendant Nos.1 and 2. CORAM : S.J. VAZIFDAR, J. DATE : 26TH NOVEMBER, 2009. P.C. :- 1. The suit is filed to recover a sum of Rs.89,42,317/- together with interest at 18% p.a. from the date of the suit till realization. 2. There is no dispute that the amounts were lent and advanced by the Plaintiffs to the Defendants. Some of the amounts claimed in the suit have been advanced by a partnership firm in which Plaintiff No.1 is a partner and an H.U.F. I will presume that the suit is not maintainable for recovery of these amounts. Even so, the suit would be maintainable in respect of the amounts lent by the Plaintiffs to the Defendants which aggregate to about Rs.18,00,000/- towards the principal amount and including interest to about Rs.27,00,000/-. 3. That the amount has been lent and advanced by the Plaintiffs to the Defendants is admitted. It is however, contended that the amounts 2 have been repaid from time to time in cash. There is no proof of such repayment. 4. It was then contended that the suit is barred by limitation. The Plaintiffs however relied upon and have based the suit upon two documents. The first is a letter addressed by the Defendants to the Plaintiffs dated 10.2.2004 by which the Defendants have agreed to repay the entire claim in suit including in respect of the amounts lent and advanced by the said firm and H.U.F. I will however, for the purpose of this order ignore these amounts. The Plaintiffs have also relied upon a statement of account confirmed by the Defendants. The statement refers to the credit granted by the Plaintiffs to the defendants from time to time in respect of the amounts received upon sale of the shares which were earlier pledged by the Defendants as security for repayment of the loan. 5. The Defendants however, denied having executed the said documents. If the documents are held to be genuine, the same constitute a cause of action in themselves. In as much as they constitute a promise to pay albeit a time barred debt. The only defence therefore is that the said documents are not genuine and that the claim is therefore barred by limitation. 6. I do not find the difference between the signature on the said documents and the admitted receipts to be such as to come to the conclusion that the said documents are forged. The contents thereof appear to be in conformity with the transaction between the parties. The receipt of the amount is admitted. The alleged repayment is not proved. In the circumstances, the defence does not appear to be genuine. 3 7. The Summons for Judgment is therefore disposed of by the following order :- i). Leave to defend granted to the Defendants conditional upon the Defendants depositing in this Court a sum of Rs20,00,000/- on or before 28.2.2010. ii). In the event the Defendants deposit the aforesaid amount, the suit to stand transferred to the list of Commercial Causes. The Defendants to file their written statement within thirty days. Discovery and inspection within four weeks thereafter. iii). On the said deposit being made, the Prothonotary and Senior Master to invest the same in any nationalized bank initially for a period of two years and thereafter for like periods of two years each. iv). In the event the Defendants fail to deposit the aforesaid amount, liberty to the Plaintiffs to apply for further orders. v). Summons for Judgment stands disposed of accordingly.