: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.384 OF 2007 SUMMONS FOR JUDGEMENT NO.384 OF 2007 SUMMONS FOR JUDGEMENT NO.384 OF 2007 IN IN IN SUMMARY SUIT NO.123 OF 2006 SUMMARY SUIT NO.123 OF 2006 SUMMARY SUIT NO.123 OF 2006 Mr.Sandeep Madhukar Momaya .. Plaintiff. Versus M/s.Lovely Wear & Ors. .. Defendants. Mr.Shailesh Shah with Mr.Ganwani i/b.U.L.Shah for plaintiff. Mr.Q.M.Ashfaq for defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 22nd October, 2008. DATE : 22nd October, 2008. DATE : 22nd October, 2008. P.C. :- P.C. :- P.C. :- 1. Heard learned Advocates on both the sides. 2. Plaintiffs have filed this suit to recover the sum of Rs.1.00 lac and interest as set out in particulars of claim on the strength of 2 documents, namely, document dated 14.1.2002 and 9.7.2002. The transactions are in the nature of Khate Pete account. 3. The defendants through defendant No.3 have filed affidavit-in-reply and in paragraph 5, a case is put up that between 2002-2004, entire loan liability is paid off and nothing is due and payable and no interest was due and : 2 : payable ever at all. In paragraph 7, it is mentioned that the record of defendant No.1 is lost in fire. If this is the stand of the defendants, it clearly goes to show that the defendants have not only admitted the transactions taken place but they have paid the entire amount and nothing is due and payable. In such a case, the court need not go into the question as regards the transactions and the court will have to test the defense of the defendants as to whether they have paid the entire amount and nothing is due and payable. The paragraphs in the affidavit-in-reply do say that the amounts have been paid. However, further particulars as to whether the amounts are paid in cash or in cheque, the dates on which the amount are paid are not set out. If this be so, it would be difficult to accept the bare word of the defendants in that behalf. In addition to it, learned Advocate for the plaintiffs produced the 2 documents in original on the basis of which suit has been filed. In the normal course and as per the transactions entered into between the two persons, if the entire amount would have been paid, the defendants would have insisted for return of the 2 documents on the basis of which the liability was raised against them. The fact that the 2 documents in original are lying with the plaintiffs goes to show that the : 3 : defense taken by the defendants is sham. 4. In my view, in a situation like this, defendants can be permitted to contest the suit by asking them to deposit an amount of Rs.1.00 lac and put up before the court at the time of trial, their case that the entire amount has been repaid and the record is lost in fire. Hence the order :- O R D E R O R D E R O R D E R i) Upon defendants depositing a sum of Rs.1.00 lac in this court on or before 15.12.2008, defendants are permitted to file written statement. ii) Suit set down for further orders on 17.12.2008. Copy of the written statement to be served upon the plaintiffs on or before 15.12.2008 after filing original in the office. iii) Summons for judgement No.384 of 2007 is disposed of in the above terms with no orders. : 4 : (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)