*1* SJ-378-09.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.378 OF 2009 IN SUMMARY SUIT NO.2605 OF 2008 Kalpana Chandrashekhar Pawar ... Plaintiff V/s. Sunita Subhash Raheja ... Defendant Mrs. B. Babulayan for the Plaintiff. CORAM : S.C.DHARMADHIKARI, J. DATE : 28 th November, 2011. P.C. : 1. This matter was argued on the last occasion. Even on the last occasion and today, the Defendant and her Advocate are absent. 2. The Plaintiff’s Advocate has been extensively heard. With her assistance, I have perused the plaint and the annexures thereto, so also the affidavits filed in reply and rejoinder. 3. On a query from the Court as to how a Summary Suit is maintainable on the basis of Annexure-A and, particularly, against the Defendant, my attention is invited to the plaint averments and it is stated that the plaint proceeds on the basis that the loan was given to the Defendant of Rs.5,60,000/-. In consideration of the loan, that was given to the Defendant’s husband, the Defendant as well as her husband executed not only a Promissory Note, but also an Agreement admitting *2* SJ-378-09.sxw their liability. Therefore, Annexure-A is styled as Pronote-cum-Declaration. It states very clearly that if the husband of the Defendant fails to repay the amount, which has been lent in advance by cheques and which was secured by the post dated cheques, then not only the husband but his wife namely the Defendant, both, shall be equally responsible and liable for the repayment of the friendly loan. It is stated that this agreement has been executed in the presence of the Defendant and she has confirmed the same and duly signed it. She has never disputed her signature thereon. It is in such circumstances that firstly the Suit is based on a written contract, as evidenced by Annexure-A. 4. Reliance is placed upon a Full Bench decision of this Court in the case of Jyotsna K. Valia Vs. T.S. Parekh and Co., reported in 2007 (4) Mh.L.J. 517. 5. On the other hand, what has been contended in the affidavit-in- reply is that the Suit is filed on the basis of the liability of the husband of the Defendant. The husband has expired. The Defendant has not borrowed any monies. The Defendant is, thus, not liable. It is very clear that a Suit on the basis of dishonoured cheques, which were issued by her husband, would not lie against the Defendant. Therefore, no Suit can be filed on the basis of any promises or assurances of the Defendant’s husband. It is in such circumstances that the Defendant contends that triable issues arise and, therefore, unconditional leave be granted to defend the Suit. There are allegations of fraud and it is also stated that the signature on the Agreement has never been given by the Defendant, nor the Plaintiff is known to the Defendant. Therefore, the question of signing the same does not arise. *3* SJ-378-09.sxw 6. It is also contended that there is other heir of the deceased Subhash Raheja namely Yash Raheja and his non-joinder is fatal. Therefore, the unconditional leave be granted. In the affidavit-in-rejoinder, it has been clarified that the Suit is filed on the basis that there is a clear admission of liability in a written agreement, copy of which is at Annexure-A to the plaint. That document would go to show that not only the husband, but the Defendant herself is also liable. Now, after a lapse of several years, the Defendant cannot disown the document, which is in writing. The writing contains an admission of liability and the assurance to pay the same, as claimed. For all these reasons, it is submitted that this defence has no merit and is not bonafide but vexatious and should be discarded. 7. With the assistance of the learned Counsel appearing for the Plaintiff, I have perused the necessary materials. On the last occasion, I had raised specific queries and after my attention is invited to the plaint averments and the contents of Annexure-A, I am satisfied that on the basis of the said contents, a Summary Suit can be filed against the Defendant. The agreement clearly states that, if the husband fails to pay, then the wife Sunita Raheja, namely, the Defendant shall be responsible and liable for the repayment of the friendly loan. The statements are that both the husband and wife are equally responsible and liable for the repayment of the friendly loan. The liability as also the obligation to repay is admitted and the confirmation of the contents under the signature of the Defendant has been perused by me. 8. In such circumstances and on the basis of the law laid down by this Court in the above cited Full Bench decision, I am of the opinion that the *4* SJ-378-09.sxw Suit can be filed on the basis of Annexure-A as a Summary Suit by invoking Order 37 of the Code of Civil Procedure. Equally, it is not necessary to join the other heir, because this is not a claim against the heirs of the deceased Subhash Raheja on the basis of his personal liability. It is a claim against the wife independent as well. 9. For the afore-stated reasons, the following order will serve the ends of justice : “O R D E R” (i). The Defendant to deposit in this Court a sum of Rs.5,60,000/- within a period of twelve weeks from today. (ii). If the amount is so deposited, the Suit shall be transferred to the list of commercial causes and, thereafter, the written statement be filed within a period of eight weeks. (iii). Discovery and inspection shall also be completed within that period. (iv). For default, if any, all further consequences in law shall follow including a decree as prayed against the Defendant. (S.C. Dharmadhikari, J.)