1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.143 OF 2009 IN SUMMARY SUIT NO.347OF 2009 Mahesh Parumal Jashnani .. Plaintiff Versus Jairam Manghandas Jashnani & Anr. .. Defendants Mr.Haresh Mansukhani for plaintiff Mr.K.T.Kukreja with Devang Shah and R.R.Lamba for defendant No.1 Mr.Kiran Jain i/b.Kiran Jain & Co. for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 24th July 2009. P.C.: 1] Heard Mr.Mansukhani for plaintiff, Mr.Kukreja for defendant No.1 and Mr.Jain for defendant No.2 2] Plaintiff has a decree only against defendant No.1. The plaint averments are that the parties are relatives. Defendant No.1 is karta of Jayram M.Jashnani, HUF. 1 3] It is stated in para 2 and 3 of the plaint that at the request of defendants plaintiff had lent and advanced to Jairam M. Jashnani, HUF by way of friendly loan a sum of Rs.2 lakhs by her cheque dated 12th November 2005. Defendant No.1 as its Karta had agreed to pay to the plaintiff interest on the amount lent at the rate of 18% p.a. and the defendant No.1 has duly paid inteest at the agreed rate to the plaintiff upto and inclusive of February 2006. 4] Since the plaintiff approached the defendant No.1 and sought return of the amount, he issued a cheque to him drawn on Ichalkaranji Janata Sahakari Bank Ltd., Kalbadevi branch. However, in para 3 of the plaint it is stated that the cheque was signed and executed by the defendant No.2 as the Constituted Attorney and/or authorised signatory of the defendant No.1 as per the mandate lodged by the defendant No.1 with his bankers. 5] The cheque upon presentation and re-presentation was dishonoured. Advocate’s notice is issued and consequently summary suit 1 is filed. 6] In all fairness, plaintiffs does not dispute institution of proceedings under Negotiable Instruments Act, more particularly section 138 thereof. 7] In the affidavit in reply by first defendant, the defence is that the cheque is not signed by him admittedly. It is the plaintiffs’ own case that the cheque is signed by defendant No.2 as authorised signatory / constituted attorney of the first defendant. Curiously on this very basis, plaintiffs approached the Metropolitan magistrate and filed a complaint under section 138 alleging offences punishable under the said provisions. During trial, the first defendant satisfied the Magistrate that there was no authority in favour of second defendant nor was there any power of attorney executed authorising him to sign the cheque in question. Aggrieved by the acquittal of the first defendant on that basis, the petitioner plaintiff sought leave of this Court to file an appeal but the learned Single Judge of this Court has categorically observed in the order refusing leave that there is nothing on record to show that first defendant has executed any power of attorney or letter of authority authorising 1 second defendant to sign the cheque in question. 8] In these circumstances, merely on the basis of the averments in paras 2 and 3 of the plaint, I do not see as to how a decree can be passed in favour of plaintifffs or even conditions imposed to grant leave to defend the summary suit. More so, when no relief is sought against the second defendant who is signatory to the cheque. Considering the material placed on record, triable issues arise for consideration of this Court. Defendant No.1 is, therefore, entitled to unconditional leave to defend the suit. Summons for Judgement is disposed of accordingly. Suit is transferred to commercial causes. Usual directions to file written statements, discovery and inspection. (S.C.DHARMADHIKARI, J)