1 28 sj 171.09.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 171 OF 2009 IN SUMMARY SUIT NO. 908 OF 2009 Mukesh Bhagwanji Gaglani .. Plaintiff -versus Snehal C. Shah .. Defendant. Mr. Niranjan Lapashiya i/b M/s Niranjan & Co. for the Plaintiff. Ms. L.K. Bulchandani i/b Mr. Samir A Vaidya for the Defendant. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH OCTOBER, 2010 P.C. 1 This suit is filed for recovery of sum of `19,94,503/-. 2 The claim of Plaintiff arises out of a loan of `17,00,000/- to the Defendant with further interest thereon. 3 It is the case of the Plaintiff that in the month of July, 2007 Defendant approached the Plaintiff with a request to advance 2 28 sj 171.09.doc loan of `15,00,000/- on the assurance that the Defendant will repay the amount with interest. The Plaintiff extended a friendly loan of `15,00,000/- in cash to the Defendant. Further, in the month of August, 2007, the Plaintiff once again lent a sum of `2,00,000/- in cash to the defendant. 4 It is stated that this amount was not paid and therefore, the plaintiff approached the defendant. At that time the defendant showed him a criminal complaint lodged with the Economic Offences Wing of Mumbai Crime Branch against one Purushottam Sukhadiya and Hiten Mehta. The Plaintiff states that along-with the criminal complaint defendant filed his balance sheet and books of accounts for the years 2007-2008 and 2008-2009. Those books of accounts according to the Plaintiff show in the column of unsecured loans, the amounts payable to the Plaintiff. It is on the basis of this balance sheet and books of accounts and the averments made in the para 4 of the plaint, the instant suit is filed. 5 Mr.Lapasiya appearing on behalf of the Plaintiff urges that the defendant in the affidavit-in-reply does not deny the books of accounts, the balance sheet and the entries therein. In-fact, at one place in the reply the claim to the extent of `15,00,000/- is admitted. 3 28 sj 171.09.doc 6 With the assistance of the learned counsel appearing for parties, I have perused the plaint and the annexures thereto and Summons for Judgment together with affidavits. 7 It is not possible to agree with Mr. Lapasiya that the suit is maintainable as a summary suit. According to him, the suit is filed to recover liquidated sum of money and that fixed or determined sum is duly reflected in the account of the defendant, who certified that amount as due and payable and the liability to that extent is acknowledged. 8 The Affidavit-in-reply will have to be read as a whole. In the reply, it has been pointed out that what is relied upon is an extract of the criminal complaint which is filed with the Economic Offences Wing of Mumbai Crime Branch. It is stated that the copy of the annual returns and/or balance sheet as annexed to the plaint are forged, fabricated and concocted. They are prepared by the Plaintiff for which a criminal complaint is registered against him not only by the Kandivali police station but also by the Yellow Gate police station. 9 The reply will have to be seen in its entirety and it is not possible to read para 6 thereof in isolation as suggested by the 4 28 sj 171.09.doc counsel appearing for the plaintiff. So read, what the plaintiff seeks to rely upon is a extract of a document filed in the police station which is also stated to be doubtful. There is a assertion of the defendant that this is a forged and fabricated document and criminal proceedings are pending. 10 For all these reasons, there is a triable issue raised with regard to the liability of the defendant to repay the sum. This is not a case where Order XXXVII Rule 2 sub rule (3) of the Civil Procedure Code and the ingredients thereof are attracted and satisfied. There are triable issues for which unconditional leave to defend will have to be granted. 11 Summons for judgment is dismissed. The defendant is granted unconditional leave to defend. Suit is transferred to the list of commercial causes with usual directions to file written statement, discovery and inspection. (S.C.DHARMADHIKARI, J.)