*1* 21-sj-371-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj SUMMONS FOR JUDGMENT NO.371 OF 2009 IN SUMMARY SUIT NO.1891 OF 2009 Roshan Lal Bhasin .. Plaintiff V/s. Mr. Subhash Khanna .. Defendant Mr. U.S.Rao, for Plaintiff. None for the Defendant. CORAM : S.C.DHARMADHIKARI, J. DATE : 7th December, 2010. P.C. 1 The Plaintiff and the Defendant are known to each other. The Defendant requested the Plaintiff for financial assistance, which came to be granted by issuing two cheques in favour of Defendant. These cheques were encashed by the Defendant. The Defendant executed promissory note dated 20th July, 2006 in favour of the Plaintiff and also handed over a post dated cheque dated 20th October, 2006 drawn on Development Credit Bank, Andheri (W) Branch, Mumbai. It is stated that the Defendant had requested the Plaintiff not to present the said cheque for clearing as there was no sufficient fund in his account and, therefore, paid interest *2* 21-sj-371-09 @ 24% to the Plaintiff. It is stated that despite the Plaintiff having called upon the Defendant to make the payment under the promissory note, the Defendant failed and neglected and that is how the suit came to be filed. 2 It is stated that the suit is filed under the provisions of Order XXXVII of the Code of Civil Procedure 1908 on the basis of the Promissory Note as Ex. “A” and cheque bearing no.589906 dated 20th October, 2006. 3 In the affidavit in reply it is stated that Defendant had received Rs.2 lakhs as and by way of loan from the Plaintiff but it is denied that Defendant had executed the Promissory Note dated 20th July, 2006. He also denied that payment of Rs.12,000/- was made towards interest. But Defendant admits issuance of cheque for Rs.2 lakhs dated 20th October, 2006 as security for the aforesaid loan availed from the Plaintiff. 4 At the same time, it is stated that the loan has been repaid in full by issuing cheques in favour of the Plaintiff. The details of the said cheques, dates and the bankers on whom the same were drawn are set out in para 4 of the reply affidavit. In such circumstances, it is stated that the loan amount is repaid in full and nothing is due and payable. 5 Plaintiff in the rejoinder affidavit states that the cheques which were sought to be relied upon to prove repayment are pertaining to some other transactions. The cheques have been duly received but there *3* 21-sj-371-09 was a previous loan for which bill of exchange was executed and the Defendant made repayment of that loan by drawing cheques in favour of the Plaintiff. The bill of exchange was also returned. Copies of the bill of exchange and the cheque which are stated to have been issued are also annexed to the rejoinder. It is thus stated that the repayment allegedly linked to the transactions which are not subject matter of this Summary Suit. 6 I have heard the learned counsel appearing for the Plaintiff. Defendant and his Advocate are absent. With the assistance of the learned counsel for the Plaintiff, I have perused the original documents as well. There is no affidavit in sur-rejoinder filed by the Defendant denying or dealing with the statements made by the Plaintiff in the affidavit in rejoinder and particularly paras 7 and 8 have remained uncontroverted. 7 To my mind, when the Defendant admits that he has received a loan of Rs.2 lakhs by way of cheques and also admits that he has issued post dated cheque of Rs.2 lakhs dated 20th October, 2006, but at the same time, in the affidavit in reply it is stated that cheques are issued in due repayment of the loan, then unless proof of encashment of cheque in dispute is produced, it will not be proper to accept the version of the Defendant. Thus, atleast amount covered by the admitted documents can be directed tobe deposited and secured. *4* 21-sj-371-09 8 In the result when repayment of the loan has not been proved by the Defendant, then interest of justice will be served if the Defendant is granted conditional leave to defend the suit. Accordingly, the following order:- (a) On Defendant depositing in this Court a sum of Rs.2 lakhs within a period of twelve weeks from the date of the order, there will be conditional leave to defend and if the amount is deposited, the suit shall be transferred to the list of Commercial Causes with usual directions to file written statement, discovery and inspection. (b) In default, all further consequences in law shall follow. (c) Summons for Judgment is allowed in the above terms. (S.C. Dharmadhikari, J)