1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDEMENT NO. 236 of 2007 IN SUMMARY SUIT NO. 440 of 2007 Durgadas T. Mulchandani .. Plaintiff versus East ’N’ West Road Carriers Pvt. Ltd. & Anr. .. Defendants ... Ms.Kavita S. Lalwani for the plaintiff. Mr. Mukesh J. Pabari for the defendants CORAM : D.G. KARNIK, J DATED : 27th April 2009 P.C.: 1. Heard learned counsel for the parties. 2. This Summons for Judgement is taken out by the plaintiff in a suit for recovery of Rs.1,00,000/- advanced by him to the defendants and interest thereon. By filing an affidavit in reply, defendants 2 have denied the liability to pay. 3. Plaintiff’s case in short is that the plaintiff advanced a trade loan of Rs.1,00,000/- to the defendant no.1 which it agreed to repay. The defendant no.1 company drew a bill of exchange of Rs.1,00,000/- which was accepted by defendant no.2, a Director of defendant no.1. The copies of the bill of exchange and other documents are annexed to the plaint. The bill was accepted by defendant no.2. Defendant no.2 also gave to the plaintiff a cheque bearing No.325568 drawn on Allahabad Bank dated 19th July 2005 for Rs.1,00,000/-. The date was subsequently changed to 19th July 2006 and the alteration was signed by the defendant. As the defendants failed and neglected to make the payment, the plaintiff by his advocate’s notice dated 18th December 2006 demanded payment. By their reply dated 30th December 2006 the defendants alleged that the money was repaid. Hence, the plaintiff has filed this suit. 4. There is no dispute that the defendant no.1 has drawn the bill of exchange and defendant no.2 has accepted the bill of exchange. There is also no dispute regarding the issuance of the cheque of Rs.1,00,000/- by the defendant no.1 though he has 3 denied the alteration in the date to have been made by him. There is also no dispute that the cheque was dishonoured. In the affidavit in reply, the defendants have contended that the money was repaid to the plaintiff in five instalments and five money receipts were issued by the defendants. The alleged money receipts have not been produced on record. The plaintiff’s advocate had demanded inspection of the money receipts. The inspection was not given. Though more than one year has passed since filing of the affidavit in reply and despite plenty of opportunity, the defendants have not produced the money receipts allegedly issued by the plaintiff. Even photo copies of the alleged money receipts are not produced. In the circumstances, the defence that the defendants have repaid the loan cannot prima facie be accepted. 5. The defence of repayment, in my view, is sham and illusory. Plaintiff is entitled to a decree. However, only by way of indulgence and since the defence is of payment, I am inclined to grant leave subject to the defendants depositing the entire amount in the court. Hence, I pass the following order:- 6. The defendants are granted conditional leave 4 to defend the suit subject to deposit in the court a sum of Rs.1,20,000/- within eight weeks. If such deposit is made, suit shall stand transferred to the list of commercial causes. The defendants shall then file written statement within 12 weeks. If the money is deposited, plaintiff is permitted to withdraw the same by furnishing security to the satisfaction of Prothonotary and Sr.Master. 7. In the event, money is not deposited, plaintiff shall have a liberty to apply. (D.G. KARNIK, J)