1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE APPEAL NO.1049 OF 2005 IN SUMMONS FOR JUDGEMENT NO.459 OF 2004 IN SUMMARY SUIT NO.1326 OF 2003 Rajiv Goyal Appellant vs. M/s.Cottor International Respondent Mr.A.M.Saraogi for the appellant. Mr.R.D.Dhanuka i/b.Mrs.A.R.Dhanuka for the respondent. CORAM : R.M. LODHA & D.G. KARNIK, JJ. DATED : 1st December 2005 P.C. Heard. 2. Admit. 3. Mrs.A.R.Dhanuka, advocate waives service for the respondent. 4. By consent, the appeal is heard finally at this stage. 5. In paragraph 4 of the plaint, the following statement is made: 2 "4. The plaintiff says and submits that the defendant continued to pay the interest on the aforesaid loan amount at the rate of 18% p.a. from time to time. The defendant has paid the interest to the plaintiff till 31st March, 2000. The last interest paid by the defendants to the plaintiff in respect of the said loan amount was paid on 4th August, 2000. The plaintiff craves leave to refer to and rely upon the bank’s statement of the plaintiff showing the credit of the said amount when produced." 6. In the affidavit in reply in opposition to the summons for judgment, with reference to paragraph 4 of the plaint, the following reply is given: "12. With reference to para 4 of the Plaint, I deny that I continue to pay the interest on the aforesaid alleged loan amount at the rate of 18% p.a. from time to time. I deny that I have paid the interest to the plaintiff till 31st March, 2000 and put the plaintiffs to the strictest proof thereof. I deny that the last interest paid by me to the plaintiff in respect of the said alleged loan amount was paid on 4th August, 2002 and put the plaintiff to the strictest proof thereof. I say that the plaintiff has not annexed or produced any such statement of account to the plaint." 7. In the light of the reply filed by the defendant, it is seen that there is no specific denial to the factum of receipt of the interest paid by them to the plaintiff on 4th August 2000. The payment of interest having been made through cheque results in fresh period of limitation. The Suit was filed on 31.03.2003 which is apparently within three years from 4th August 2000. Thus, the defence of the defendant that the suit claim is barred by time is virtually no defence. 3 8. The learned counsel for the appellant sought to urge that the amount that was paid on 4th August 2000 related to some other transaction between the parties. No specific facts about the said transaction have been averred in the reply affidavit. It, thus, appears that the stand set up by the defendant is make-believe. 9. Before the trial Judge, the contention appears to have been raised that the transaction between the parties is hit by Bombay Money Lenders Act, no such contention was raised before us by the learned counsel for the appellant and, rightly so, as the loan advanced by the plaintiff to the defendant appears to be friendly loan. 10. Though, there is no merit in any of the defences set up in opposition to the summons for judgment, in our considered view, by way of mercy an opportunity deserves to be granted to defend the Suit subject to deposit of Rs.25 lacs. 11. In this view of the matter, we find that the learned trial Judge was not justified in decreeing the Suit itself by making the summons for judgment absolute. 12. We, accordingly, allow the appeal in part and grant 4 conditional leave to the appellant-defendant to defend the Suit subject to his depositing an amount of Rs.25 lacs within six weeks from today. The plaintiff-respondent is given liberty to withdraw the said amount on furnishing security to the satisfaction of Prothonotary & Senior Master of this Court and an undertaking that in the event of the Suit being dismissed, he would restitute the amount so withdrawn along with interest at the rate of 6% per annum. 13. Upon deposit of the amount within the time as aforedirected, the Suit shall stand transferred to the List of Commercial Causes and be proceeded with accordingly. 14. In case the amount of Rs.25 lacs is not deposited within the aforedirected time, the appeal shall be treated as dismissed and the plaintiff shall be entitled to execute the decree as per the order dated 27th September 2005. (R.M.LODHA, (R.M.LODHA, (R.M.LODHA, J.) J.) J.) (D. (D. (D. G. KARNIK, J.) G. KARNIK, J.) G. KARNIK, J.)