acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 174 OF 2007 IN SUMMARY SUIT NO.718 OF 2007 Deepa Amit Yadav …Plaintiff. Vs. Megha Uday Pathare & Anr. …Defendants. ---- Mr.Tejas H. Bhatt i/b Sanjay H. Pandey, for the Plaintiff. Mr. Vijay Sutrale for Defendant nos.1 and 2. ---- CORAM: S.J. VAZIFDAR, J. DATED: 24 TH AUGUST 2009 P.C.: 1. The suit is filed to recover a sum of Rs.13,72,799/- together with interest at 24% p.a. on the principal sum of Rs.8,00,000/-. 2. The Plaintiff’s claim is that that she advanced a loan of Rs.8,00,000/- to Defendant no.1. In consideration thereof, Defendant no.1 executed a promissory note dated 21.02.2004. Under the said promissory note Defendant no.1 had promised to repay the said sum to the Plaintiff on demand with interest at 24% p.a. Defendant no.2 the Plaintiff’s mother-in- law had also executed a guarantee dated 21.02.2004 in the Plaintiff’s favour in respect of the said sum of Rs.8,00,000/- together with interest thereon. 3. The Defendants have not denied their signatures on any of the documents. They have denied only having executing the promissory note and 1 the guarantee in the presence of the Notary. Once the execution of the documents is admitted, that it was not done before the Notary makes no difference. 4. Moreover, Defendant no.1 admits having issued a post dated cheque dated 31.12.2004 in the sum of Rs.8,00,000/-. 5. It is difficult to accept the Defendants’ case that they had not validly executed the promissory note and the guarantee. Firstly, Defendant no.2 has not even filed an affidavit-in-reply. Secondly, this denial by Defendant no.1 is an afterthought. The Plaintiff’s husband had also advanced a loan of Rs.1,00,000/- to Defendant no.1. By a letter dated 23.04.2004, the Advocate for the Plaintiff’s husband demanded payment of the said sum from Defendant no.1. The Advocate for Defendant no.1 by a letter dated 05.05.2004 replied to the said notice. In this reply Defendant no.1 also dealt with the claim in the present suit. It is important to note that in the said Advocate’s reply it is expressly admitted that Defendant no.1 had taken a loan of Rs.8,00,000/- from the Plaintiff for the purpose of her business activity and had executed the said promissory note. Defendant no.1, however, admitted that the said cheque was issued as a collateral security and stated that the said amount of Rs.8,00,000/- would definitely be paid by 31.12.2004. The contention of Defendant no.1 regarding the circumstances in which she had issued the post dated cheque to the Plaintiff’s husband is an another matter. If it is a valid defence and if any proceedings 2 are adopted by the Plaintiff’s husband that would be decided on it’s own merits. What is important is that the suit transaction has been admitted. Moreover, the execution of the promissory note is also admitted. However, the execution of the indemnity by Defendant no.2 is not admitted in this letter. 6. The Defendants having failed to make a payment of the suit claim, the Plaintiff’s Advocate addressed a notice dated 26.02.2005. This notice was replied to by the Defendants’ Advocate’s letter dated 28.03.2005. There is a complete denial of the claim in the suit. 7. It must be remember, however, that prior to this reply Defendant no.1 had by her Advocate’s letter dated 28.03.2005 clearly admitted the execution of the promissory note in this suit and the receipt of the loan in this suit. The denial therefore in the letter dated 28.03.2005 inspires little confidence. 8. It is also contended that the post dated cheque was given as a collateral security as the Plaintiff and Defendant no.1 had decided to do business together. In view of the above facts, this defence appears to be an afterthought. 9. It was then submitted by the Defendants that the promissory note as well as the guarantee were altered. This submission is without any basis. It is obvious that the documents were prepared in December 2003 but were executed on 21.12.2004. This is clear from the fact that the date in the 3 month of December 2003 was blank in the typed documents. The date 21.02.2004 was hand-written indicating that it was executed on 21.02.2004. 10. It was also submitted that there is no requirement in law for the promissory note and the guarantee to be notarised. I agree. However, I do not agree that an adverse inference ought to be drawn against the Plaintiff for this reasons. 11. In the circumstances, there is no defence to the Plaintiff’s claim in the suit. 12. However, in view of the financial difficulty expressed by the Defendants, leave to defend is granted to the Defendants conditional upon their depositing in this court a sum of Rs.10,00,000/- on or before 31.12.2009 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. In the event the Defendants fail to deposit the aforesaid amount, liberty to the Plaintiff to apply for further orders. On the said deposit being made, the Prothonotary and Senior Master to invest the same in any nationalised bank initially for a period of two years and shall renew the same thereafter for a period of one year from time to time. 4 13. It is clarified that this order will not affect any other proceedings that may have been adopted between the parties. 14. The Summons for Judgment stands disposed of accordingly. 5