- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT No. 189 OF 2008 IN SUMMARY SUIT No. 2967 OF 2007 Mr. Dinesh Ranchhoddas Kapadia ... Plaintiff Vs. Mrs. Lily Edward Joseph & Anr. ... Defendants *** Mr. N. P. Pandit with M. V. Murlidharan i/b M/s. Joy Legal Consultants, for the Plaintiff. Mr. Anil Kapoor, for the Defendants. *** CORAM : S. J. VAZIFDAR, J. DATE : SEPTEMBER 24, 2009. PC :- 1. The suit is filed to recovery a sum of Rs.62,37,269/- together with interest thereon at 18% per annum from the date of suit till payment. 2. There is no dispute that a sum of Rs.50,00,000/- was advanced by cheque by the plaintiff to defendant No.1. Defendant No.2 is the husband of defendant No.1. He is not liable to any of the amounts claimed in the suit. - 2 - 3. Defendant No.1 issued two cheques in the sum of Rs.50,00,000/- and Rs.20,00,000/- both dated 7th January 2006 towards repayment of the loan of Rs.70,00,000/- and interest thereon. According to the plaintiff, interest at 16% per annum was agreed to be paid. The said cheques were dishonoured. 4. The only case of the defendants is that on 15th March 2008 the amount of Rs.50,00,000/- was paid by the defendants to the plaintiff in full and final settlement of the claim. In other words, according to the defendants, the interest was given up. The repayment is alleged to have been made in cash. 5. It is difficult to accept this defense of repayment in cash for more than one reason. With a view to affording the defendants every opportunity of establishing the case that the repayment had been made in cash, by an order dated 4th September 2009 I granted an adjournment to enable the defendants to explain the source from which the defendants obtained the amount of Rs.50,00,000/-. An affidavit was filed by the defendants thereafter. The affidavit refers to the bank statement. The withdrawals shown therein firstly do not pertain to the relevant period around 15th March 2008 when the cash is supposed to have been paid. For instance, a withdrawal in cash on 12th January 2007 is relied upon. It is not even the defendants case that in January 2007 there was any proposal for a settlement. 6. I appreciate that there are affidavits of the two persons - 3 - who allegedly witnessed the repayment of Rs.50,00,000/- on 15th March 2008. The said affidavits however, do not even indicate whether the amounts were counted by any one including themselves when the repayment was made. 7. When the cheques were dishonoured on 24th March 2006, the plaintiff adopted proceedings under section 138 of the Negotiable Instruments Act on 16th May 2006. The said proceedings are pending. The defendants filed an application on 2nd February 2009 for having the complaint dismissed on the ground of jurisdiction. There is not a whisper about the alleged settlement or the alleged repayment in this application. Nor was there any mention in respect of these facts in an affidavit-in-rejoinder filed in that application. It is difficult to believe that the alleged repayment would not have been recorded in some form somewhere, especially in view of the fact that the proceedings under section 138 of the Negotiable Instruments Act were pending. 8. I understand that defendant No.1 availed of the loan for her medical treatment in respect of her unfortunate illness. However, the plaintiff is also a senior citizen. He is now 75 years old. 9. In the circumstances, leave to the defend is granted to the the defendants upon the defendants depositing in this Court a sum of Rs.50,00,000/- within 12 weeks from today. - 4 - . In the event defendants deposit the aforesaid amount, the suit to stand transferred to the list of Commercial Causes. The defendants to file their written-statement within thirty days. Discovery and Inspection within four weeks thereafter. . In the event the defendants fail to deposit the aforesaid amount, liberty to the plaintiff to apply for further orders. . On the said deposit being made, the Prothonotary and Senior Master to invest the same in any nationalized bank initially for a period of two years and shall renew the same thereafter for a period of one year from time to time. . Summons for Judgment stands disposed of accordingly.