1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Summons for Judgment No.117 of 2008 IN Summary Suit No.228 of 2008 Mulchand R. Saiya .. .. Plaintiff v/s. 1.M/s.Apple & ors. .. .. Defendants Mr.Amit H. Yadav for Plff. Mr.Navin Parikh i/by Mr.J.B. Patel for Defts. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 6th April 2009 P.C. : 1.This Summary Suit is filed upon the 3 Promissory Notes for Re.1 Lakh, Re.1 Lakh and Rs.2 Lakhs, respectively. The Promissory Notes are shown to be dated 24th December 2004, 14th January 2005 and 22nd June 2005. Defendant No.1-Firm, who took the loan, was represented by its partners, Defendant Nos.2 to 6. The averments in the Plaint show how and when the loan was taken and how and when the negotiable instruments were executed. The first loan of Re.1 Lakh was taken on 24.12.2004. It was collected by Defendant No.3 against an already executed Promissory Note dated 24.12.2004 of Rs.1 Lakh by Defendant No.4 as a partner of Defendant No.1-Firm. Defendant No.1 promised 2 to repay the principal amount along with the interest which was stated in the Promissory Note on demand. The averments in paragraph 3 of the Plaint show how the Promissory Note executed by one partner was actually brought and delivered to the Plaintiff upon taking the loan amount mentioned therein. 2.The second Promissory Note for Rs.1 Lakh was also collected by Defendant No.3 against the already executed Promissory Note dated 14.1.2005 for Rs.1 Lakh executed by Defendant Nos.1 to 4. Under that Promissory Note, the Defendants promised to pay principal amount as well as agreed interest. The averments in Para-4 of the Plaint show how and when that Promissory Note was executed. 3.The third Promissory Note for Rs.2 Lakhs was executed by Defendant No.1 as the partner of Defendant No.1 on 22.8.2005 against the receipt of the consideration mentioned therein. That is similarly payable for the principal amount as well as the stated rate of interest. 4.Consideration under these documents is presumed as a negotiable instrument. The lack of consideration, if at all, has to be shown by the Defendants. The Defendants have 3 sought to show that Defendant Nos.2 to 6 are partners of Defendant No.1-Firm. They bind the Firm. Two of these Defendants have executed the Promissory Note on behalf of the Firm. The Firm is liable to make good the payment mentioned in the negotiable instrument. One of the partners has collected two of the amounts under the already executed Promissory Note signed by other partners. One of the partners has himself taken another loan and executed the Promissory Note thereupon. 5.It is contended that Defendant No.4 was not present in India on the date of the execution of the Promissory Note. The contention is completely irrelevant. The executant is not required to remain present in India on the date of the execution of the Promissory Note. Only an inchoate document is required to be filled in. An inchoate document can be filled in by the holder of the instrument. However, in this case, the Promissory Note signed by Defendant No.4 was pre-executed and brought to the Plaintiff, upon which the loan was taken by Defendant No.1 being handed over actually to Defendant No.3. Defendant No.3 has not disputed the receipt of the loan. 6.It is also contended by the Defendant that certain immovable 4 properties were to be transferred. That was under an oral agreement. Hence the Suit is maintainable as a Summary Suit for the loan amount taken by the Defendants. There may have been another oral agreement. The Plaintiff has not sued upon that oral transaction. The Plaintiff has not claimed the relief of obtaining or transferring any immovable property. The Plaintiff has averred about another agreement – oral – between the parties. The Plaintiff has sued under negotiable instrument which has been validly executed. There is no substantial defence shown to the negotiable instrument or the consideration passed therein. 7.On the Defendants depositing in Court Rs.4 Lakhs within 8 weeks, the Defendants shall have leave to defend the Suit. If the amount is deposited, the Defendants shall file their Written Statement within 30 days of such deposit. (SMT.ROSHAN DALVI, J.)