: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUMMARY SUMMARY SUMMARY SUIT SUIT SUIT NO.1570 OF 1988 NO.1570 OF 1988 NO.1570 OF 1988 Mrs.Shima Kaushal alias Sushima Sharma, Adult, Indian Inhabitant, R/at.Glen Eagle, 5th Floor, Gulmohar Road No.1, 7, JVPDS, Juhu, Mumbai - 400 049. .. Plaintiff. Versus 1(a). Ms.Ketty daughter of Late Jehangir H.Dhanjibhoy R/at. Flat No.1, Agiari, Compound, Gowalia Tank Road, Mumbai - 400 007. 1(b). Smt.Naseem Jehangir Dhanjibhoy Adult, Indian Inhabitant, R/at.44, Geet Bhuvan, Block No.B, 5th Floor, Warden Road, Mumbai - 400 026. .. Defendants. Mr.R.V.Sankpal for plaintiff. Mr.S.M.Sakhardande with Ms.Trupti Sanghvi i/b.Bhuta & Associates for defendant No.1(b). CORAM CORAM CORAM : : : V.C.DAGA, J. V.C.DAGA, J. V.C.DAGA, J. DATE DATE DATE OF OF OF PRONOUNCEMENT OF THE JUDGEMENT : 15/04/2008. PRONOUNCEMENT OF THE JUDGEMENT : 15/04/2008. PRONOUNCEMENT OF THE JUDGEMENT : 15/04/2008. JUDGEMENT JUDGEMENT JUDGEMENT :- :- :- 1. The plaintiff has filed this summary suit for the recovery of Rs.1,14,000.00 with future interest thereon against the defendants. 2. The factual matrix brought on record is that the original defendant late Jehangir Dhanjibhoy was the family friend of the plaintiff. The plaintiff and the original : 2 : defendant were known to each other. The original defendant late Jehangir represented to the plaintiff that he was in need of money for his business establishment run under the name and style of Hotel Sai Village and Restaurant at Shirdi. He represented that he has applied for financial assistance to the various financial institutions and banks and shortly he is likely to get financial assistance from them. In the meanwhile, since he was in need of money, he was granted handloan by the plaintiff, which was secured by the defendant by executing Promissory Note dated 5th June, 1985, in the sum of Rs.60,000/-. According to the plaintiff, the amount was paid by way of cheque and the said cheque was deposited in the defendant’s Bank Account No.27576 maintained with the Bank of India. The amount paid to the original defendant late Jehangir was demanded from time to time by the plaintiff. Since the defendant did not pay, the plaintiff issued a registered notice on 24th May, 1988. Inspite of written demands, no amount was paid by the late Jehangir and, therefore, the plaintiff claims to have filed the present suit for the recovery of Rs.60,000/- with interest thereon. 3. It appears that during the pendency of the suit,, the original defendant Jehangir expired. His legal heirs and representatives, namely; his daughter Ms.Ketty and : 3 : his wife Smt.Naseem Jehangir Dhanjibhoy were brought on record by way of substitution. After substitution, defendant No.1(b) appeared whereas defendant No.1a did not appear. Both parties tried to settle their claim outside the Court but they could not succeed. 4. By an order dated 17th January, 2008, unconditional leave was granted in favour of the defendants to defend the suit. Since Ms.Trupti Sanghvi i/b.Bhuta & Associates appeared for defendant No.1(b) Smt.Naseem Dhanjibhoy was permitted to file her written statement. None of the defendants chose to file written statement. Consequently, the plaintiff was permitted to prove her claim by filing documents and the affidavit in support of suit claim. Accordingly, the affidavit of one Shri.Rajesh Kaushal was filed in support of the suit claim. Mr.Rajesh Kaushal claims to be the Power of Attorney holder on behalf of the plaintiff. 5. The plaintiff filed the original documents, namely; promissory note dated 5th June, 1985 in the sum of Rs.60,000/- wherein the original defendant late Jehangir had promised to pay Rs.60,000/- with interest thereon @2.5% per month and also acknowledged the receipt of amount by cheque No.0521126 drawn on Bank of India. The plaintiff has also produced original passbook : 4 : evidencing the debit entry showing encashment of the said cheque by the defendant late Jehangir. The plaintiff has also produced Notice of demand dated 24th May, 1988 issued by her through her Advocate. 6. Mr.Rajesh Kaushal, Power of Attorney holder examined himself on oath and verified the affidavit and proved the documents and the suit claim. Nobody appeared for the defendant No.1(a). The defendant No.1(b) could not cross examine for the reasons stated in the order dated 29th February, 2008. Thus, the documentary and oral evidence of the plaintiff went unchallenged. 7. With the aforesaid material on record, the suit was heard. 8. The learned Counsel appearing for the plaintiff urged that the entire suit claim is established by oral as well as documentary evidence. He further urged that the promissory note raises a presumption of consideration. He further reiterated that the encashment of the cheque by the defendant has also been established together with the demand promissory note issued in favour of the original defendant for Rs.60,000/-. He further urged that both the defendants being heirs and legal representatives of the deceased are liable to suffer the decree and pay suit : 5 : claim. That is how he claim that the plaintiff is entitled to a decree in terms of the prayers made in the plaint. 9. Per contra, Mr.Sakhardande, learned Counsel appearing for the defendant No.2 urged that the evidence of the Power of Attorney holder cannot be relied upon. He cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined in view of the provisions under Order 3 Rules 1 & 2 of the Code of Civil Procedure. He placed a strong reliance on the judgement of the Apex Court in the case of Janki Janki Janki Vashdeo Vashdeo Vashdeo Bhojwani & Anr. v/s. Indusind Bank Ltd. & Ors. Bhojwani & Anr. v/s. Indusind Bank Ltd. & Ors. Bhojwani & Anr. v/s. Indusind Bank Ltd. & Ors. reported reported reported in AIR 2005 S.C. 439. in AIR 2005 S.C. 439. in AIR 2005 S.C. 439. Mr.Sakhardande has also urged that the affidavit filed is in first person and, therefore, the plaintiff has not proved her claim. The suit argument is, thus, liable to be rejected. Mr.Rajesh Kaushal is a Power of Attorney holder. In this view of the matter, it appears that while drafting his affidavit, Advocate has drafted it in first person. It is a technical mistake on the part of the Advocate for which, plaintiff cannot be made to suffer. Mere mistake on the part of the Advocate in drafting affidavit, by itself : 6 : is not sufficient to dislodge the claim of the plaintiff, especially, when on merits no evidence is tendered by the defendants in defence much less to rebut legal presumption. 10. In rejoinder, learned Counsel for the plaintiff urged that so far as the Power of Attorney holder Mr.Rajesh Kaushal is concerned, looking to his evidence, it would be clear that he knows entire facts of the case right from the stage of receiving requests from late Jehangir Dhanjibhoy for loan till the stage of payment to him. The promissory note was executed in favour of the plaintiff by the original defendant late Jehangir in his presence. He, thus, submits that even if the Apex Court judgement is taken into account, the evidence of Mr.Rajesh Kaushal cannot be discarded since he is in know-how of full facts of the case. He, thus, prayed that the submissions made by the defendants in this behalf are liable to be rejected and the suit claim is liable to decreed in toto. 11. Having heard both parties, the submissions made by the learned Counsel appearing for the defendant No.1(b) hold no water. The plaintiff has proved her claim in toto. The promissory note raises a rebuttable presumption under Section 118 of the Negotiable Instruments Act (N.I. : 7 : Act) that it was executed for consideration. The said presumption has not been is rebutted by the defendant. 12. In the aforesaid view of the matter, since the plaintiff has proved her claim, the claim in suit in the sum of Rs.60,000/- is liable to be decreed with interest thereon @18% p.a. from the date of pronote i.e. 5th June, 1985 till the date of suit in terms of following order :- O R D E R R D E R R D E R a) Defendants to pay jointly and severally to the plaintiff a sum of Rs.60,000/- with interest thereon @18% per annum from the date of pronote i.e. 5th June, 1985 till the date of filing suit and @10% p.a. from the date of suit till full and final payment is made with costs. 13. Decree be drawn in terms of this order. (V.C. (V.C. (V.C. DAGA, J.) DAGA, J.) DAGA, J.)