1 sj236-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.236 of 2010 in Summary Suit No. 1051 of 2010 Bhaskar Abaji Ghone .. Plaintiff v/s. Prakash Dattaram Satam ..Defendant Mr.Praviin G. Sawant for the Plaintiff. Mr.R.M.Haridas for the Defendant CORAM : R.Y.GANOO, J. DATED : 2nd August , 2010 P.C. : 1. The plaintiff has instituted this suit on the basis of the document dated 10.5.2008 for recovery of monies as set out in the particulars of claim i.e. principal amount of Rs.95,000/- + interest thereon. While arriving at the final figures, the plaintiff has given credit to certain amount to the extent of Rs.25,565/- being the amount paid prior to 2002. The said amount is appropriated towards payment of interest. The plaintiff has therefore filed the suit for recovery of Rs.2,59,220/- and intereset and costs. 2 sj236-10.sxw 2. The Court proceeded to hear the summons for judgment on the strength of denial so far as the rejoinder is concerned. 3. The defendant, in his affidavit in reply has in terms admitted that he has received Rs.95,000/- from the plaintiff and has from time to time paid the entire amount in cash. He claims that as of 2002 he is not liable to pay any amount. Learned Counsel appearing for the defendant therefore submitted that as of today there is no cause of action for the plaintiff to institute the suit. 4. Learned Counsel for the defendant submitted that the document in question i.e. writing dated 10.5.2008 is not in his handwriting and it does not bear his signature. He had in support of this contention that the signature on the said document and his specimen signature with the bank differs, relied upon the certificate issued by the bank wherein his signature is found. He called upon the court to compare the two signatures and arrive at the conclusion that the signature appearing on the suit document is forged. According to him, if this submission is accepted then defendant is not liable to pay amount and the defendant is entitled to unconditional leave to defend. 3 sj236-10.sxw 5. Learned counsel for the defendant submitted that as plaintiff has accepted that till 2002 certain amounts were paid and they were paid towards the interst it would mean that as of 2002 some amount was due and payable. According to learned Counsel Mr.Hardas, it was necessary for the plaintiff to institute suit for the said balance allegedly amount payable by the defendant within three years from 2002. He submitted that the document dated 10.5.2008 on which the plaintiff is relying, if it is treated as admission on the part of the defendant, the said admission and acknowledgement is not within the period of limitation as understood within the meaning of Section 18 of the Limitation Act, 1963 (for short said Act) and the suit is instituted beyond the period of limitation. He therefore submitted that the defendant is entitled to unconditional leave to defend. 6. Learned Counsel for the plaintiff opposed the submission and has pressed the provisions of Section 25(3) of the Indian Contract Act, 1872 and according to him, the said provisions would bring the suit within the period of limitation. 4 sj236-10.sxw 7. I have considered the rival submissions. The defendant admits that he has paid all the amounts by cash upto 2002 and according to him there is no liability fasten upon him. If the principal amount was Rs. 95,000/- and taking into consideration the rate of interest, certainly the amount which may be due in the year 2002 would be more than Rs.1,00,000/-. If the defendant has paid such an amount of Rs. 1,00,000/- in cash it was absolutely necessary for the defendant to obtain some document in the nature of receipt for having received a particular amount. Mere statement of the defendant that he has paid all amounts due and payable upto 2002, just can’t be accepted . In the normal course, when a person who would pay the amount to the other by way of repayment of loan and interest he would be careful in obtaining some kind of writing, (may not be in a legal form) to keep it with him as and by way of record. This is not done by the defendant and therefore the case of the defendant that he has paid all dues upto 2002 is required to be rejected. 8. The defendant claims that his signature differs from the one on impugned document can’t be accepted across the bar. The burden to show that the said signature differs from the said document and that 5 sj236-10.sxw the said document is forged is on the defendant. It is just easy for a person who is liable to pay to contend that the document is forged and the signature differs. No other points are placed by the defendant to show that the said document is forged. Therefore the contention of the defendant that the said document is forged is required to be rejected. 9. The next contention of the defendant that the institution of suit is beyond the period of limitation is required to be rejected on the combined reading of Section 18 of the Limitation Act, 1963 and Section 25(3) of the Indian Contract Act, 1872. It is true that the plaintiff admits that certain amounts were paid by the defendant. However, the plaintiff has not given exact particulars in the plaint. Even if the word of the plaintiff is accepted that as of 2002 certain amounts were paid and certain amounts remained to be paid, the suit for the balance amount should have been filed within three years. If defendant would not have executed any document after 2002 the argument advanced by Learned Advocate Hardas could have been accepted. However, on account of document dated 10.5.2002 the provisions of Section 25(3) of the Indian Contract Act, 1872 are 6 sj236-10.sxw attracted and therefore the loan liability, which at one point of time got barred by the period of limitation is revived on account of document dated 10.5.2002. Of course, this observation is on the basis of the stand taken by the plaintiff that the document is genuine. 10.It was also submitted by learned Counsel for the defendant that the document dated 10.5.2002 does not amount to admission as understood within the meaning of Section 25(3) of the Indian Contract Act, 1872. He submitted that provisions of Section 18 of the said Act and Section 25(3) of the Indian Contract Act,1872 are conflicting and therefore provisions of Section 18 of the said Act should prevail. I am unable to accept this submission. The provisions of Section 25(3) of the Indian Contract Act, 1872 takes care of such cases where the liability which once fell beyond the period of limitation on account of certain facts gets revived on account of document executed by debtor subsequent to the expiry of the period of limitation in conformity with provisions of Section 25(3) of the Indian Contract Act. Hence the argument advanced by learned Counsel for the defendant that the suit is beyond the period of limitation is rejected. 7 sj236-10.sxw 11.In view of the aforesaid discussion, atleast as of today the liability of the principal amount of Rs.95,000/- stands and the question of interest remains open. 12.In view of the above, I am inclined to hold that the Defendant will have to be put to terms to defend the suit. Looking to the facts and figures, I am inclined to direct Defendant to deposit in this Court Rs. 95,000/- as and by way of condition to defend suit. 13.For the reasons mentioned above, the summons for judgment is disposed of by passing the following order. ORDER a) Upon defendants depositing the sum of Rs.95,000/- on or before 9.9.2010, the defendant is permitted to defend the suit by filing written statement. Suit stands adjourned to 14.9.2010 for filing written statement. On that day defendant shall file written statement in court. If the sum of Rs.95,000/- is deposited by the 8 sj236-10.sxw defendant in the office as aforesaid, the office shall invest the said amount in fixed deposit initially for the period of two years and continue to renew the same for like period till further orders from the Court. b) There shall be no order as to costs. c) After the aforesaid order is passed, learned Counsel appearing for the defendant prays for more time to deposit the amount. d) If the defendant intends to act on the basis of this order, the defendant should deposit substantial amount in the court and then apply for time. On doing so the Court shall consider the case for grant of further time. [R.Y.GANOO, J.]