: 1 : sj-272-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 272 OF 2008 IN SUMMARY SUIT NO. 2129 OF 2008 Savitri Premji Thakkar .. Plaintiff v/s. M/s. Mittal Developers & Ors. .. Defendants ......... Mr. Krunal Sampat i/b S.K. Jain for the plaintiff Mr. R.V. Sipahimalani i/b M/s. V.T. Sipahimalani & Co. for defendant no.3 Mr. S.T. Manek i/b S.T. Manek & Co. for defendant nos. 1 and 2. ......... CORAM : R.Y.GANOO, J. DATE : 1st DECEMBER, 2010 P.C. : 1. The plaintiff has filed this suit to recover dues on the strength of promissory note dated 5th July, 2004 for Rs.6 lakhs and promissory note dated 17th January, 2005 for Rs.2,40,000/- and for interest. The present suit has been filed on 23rd May, 2008. Two causes of action are taken up together for institution of the present suit. It has been the case of the plaintiff that on 17th April, 2006, defendant no.1 a partnership firm paid to plaintiff Rs.7,200/-. Learned Counsel for the plaintiff across the bar tendered letter issued by the partner confirming : 2 : sj-272-08=.sxw the accounts for the period 1st April, 2006 to 31st March, 2007. The said letter, no doubt, mentions that Rs.7,200/- were paid on 17th April, 2006. However, there is nothing to show that sum of Rs.7,200/- was appropriated by the plaintiff towards the interest payable in respect of a particular promissory note out of the two promissory notes. This suit covering both the promissory notes is filed on 23rd May, 2008. As the date of promissory note in regard to sum of Rs.6 lakhs is 5th July, 2004, the period of limitation would come to an end as of 5th July, 2007. For the second promissory note dated 17th January, 2005 the period of limitation would come to an end as on 17th January, 2008. In order to bring the claim of the plaintiff within the period of limitation with the aforesaid relevant dates, it was necessary for the plaintiff to show that after the execution of the promissory notes and before the period of limitation came to an end, defendants have paid a part of the principal or anything towards interest. It is the case of the plaintiff that no principal amount is paid but interest is paid and the relevant installment according to the plaintiff is for Rs.7,200/- which would bring the suit within the period of limitation. In order to show extension of period of limitation, it was necessary for the plaintiff to show that said amount of interest was appropriated towards a particular promissory note. It is not possible to treat that such amount of Rs.7,200/- would be appropriated towards both the promissory notes at one and the same : 3 : sj-272-08=.sxw time. Even no apportionment is shown to have been made by plaintiff in books of account as regarding crediting interest to both the promissory notes respectively. Looking to facts from any angle, prima-facie, suit is instituted beyond the period of limitation. 2. It was submitted on behalf of the plaintiff that one cheque for Rs. 6,00,000/- and another cheque for Rs.2,40,000/- were delivered to plaintiff towards repayment of the monies but the said cheques were dishonoured and hence, the claim of the plaintiff should be accepted. 3. Though plaintiff claims that the cheques were dishonoured, suit is not based on dishonoured cheques. The particulars of claim do not refer to dishonoured cheques. Hence, the contention of plaintiff in that behalf is required to be rejected. 4. In view of the above, defendants are entitled to unconditional leave to defend the suit. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Defendants are granted unconditional leave to defend the suit. (ii) Defendants to file written statement directly in the office on or : 4 : sj-272-08=.sxw before 28th February, 2011. (iii) Defendants to serve copy of the written statement upon the advocate for the plaintiff within 10 days from filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)