1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk SUMMARY SUIT NO. 322 OF 2004 J. Sadasivam .. Plaintiff Versus Raziya Mohammed Shafi Mujawar .. Defendant Mr. D. A. Athavale i/b Sonali Humane for the Plaintiff. Mr. M. B. Kale i/b K. S. Dewal for the Defendant. CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 10.06.2010 Date of pronouncing the order : 22.06.2010 JUDGMENT 1. The Plaintiff has sued upon the written Agreement dated 21st March, 2001 in respect of a loan of Rs.4,80,000/- taken by the Defendant from the Plaintiff. The Agreement signed by the Defendant shows that the loan was taken during November, 1999. It states that the loan does not bear interest. The agreement supersedes an earlier agreement executed by the parties during November, 1999. Under the said agreement the Defendant agreed to repay Rs. 3 lacs by 10th June, 2001 and the balance of Rs. 1,80,000/- by 30th July, 2001. 2. The Defendant repaid Rs. 1 lac and the suit is filed for the balance amount of Rs.3, 80,000/- with interest 2 thereon at the rate of 18% per annum from 21.03.2001 till the date of the payment/realization. 3. The Defendant sought to make payment by certain cheques. Only one cheque of Rs. 1 lac came to be honoured and for which credit has been given. Another cheque of Rs. 3 lacs was directed not be deposited. Two cheques of Rs.50, 000/- each have been dishonoured. 4. The Plaintiff has written numerous letters in his own handwriting and given to the Defendant and or her son or her employee at her address. None of these letters has been replied. Finally demand notice has been issued for recovery of the balance amount on the aforesaid writing with interest thereon at the aforesaid rate. 5. The Defendant has denied the execution of the writing dated 21st March, 2001. It is her case that the loan of Rs. 2 lacs was given by the Plaintiff to her by way of a demand draft drawn on Bank of Maharashtra, Chinchwad Branch, Pune – 411 033 bearing No. 978078 dated 29.12.1999 issued in the name of G.E. Power Services (I) Ltd. That amount was to be returned on 25th January, 2000 without interest. 6. It is Defendant’s case that the said amount was returned partly by cheque and partly by in cash. The cheque of Rs. 1 lac came to be issued by the Defendant in 3 favour of the Plaintiff which was honoured and which is the part payment admitted by the Plaintiff in the demand notice. Further payment was made by two cheques of Rs. 50,000/- which were dishonoured and later replaced by cash payment in the month of February, 2002. No receipt for the cash payment is produced. 7. The Plaintiff has not admitted receipt of any cash amount other than the receipt of Rs. 1 lac by cheque. 8. Based on this respective cases of the parties, the following issues were framed and my answer as follows :- I S S U E S 1. Whether this Court has territorial jurisdiction to this suit ? Yes. 2. Whether the parties executed the written document on 21st March, 2001 Exhibit A to the Plaint ? Yes. 3. What relief, if any, is the Plaintiff entitled to ? As per final order. 9. The Plaintiff examined himself. He has been cross-examined. The husband of the Defendant who is her constituted attorney examined himself on behalf of the Defendant. He has also been cross-examined. 4 10. Issue No. 1 :- The suit writing dated 21st March, 2001 has been executed in Mumbai and is payable in Mumbai. The Defendant resides and carries on business in Mumbai. Hence this Court has territorial jurisdiction to try the suit. It is the Defendant’s case that an earlier transaction took place in November, 1999 in Pune through Bank of Maharashtra, Chinchwad Branch, Pune and hence this Court does not have territorial jurisdiction to try the suit. The earlier agreement is not produced. This suit is filed on a subsequent agreement stated to be executed by the Defendant. Hence this Court’s territorial jurisdiction is not barred. 11. Issue No. 2 :- The Plaintiff produced the aforesaid writing, 4 aforesaid cheques of the Defendant and the various letters written to the Defendant requesting repayment including the notice of demand. The essential case that has to be adjudicated is whether the admitted transaction between the parties in about November, 1999 was for Rs. 2 lacs which have been paid off or was under a writing executed for and in respect of an earlier loan taken, but not fully repaid. The Plaintiff’s evidence shows that the Plaintiff has paid “ the amount” to the Defendant in November, 1999 for her business at her request. An Agreement was executed. It is not available with the Plaintiff. Thereafter, the suit agreement was executed on 21st March, 2001. Aside from the payment of Rs. 1 lac various cheques issued by the Defendant have been 5 dishonoured or directed not to be presented. 12. The Defendant’s admission in her Written Statement is in respect of the amount loaned to her. However the admission is that the loan was given in December, 1999 and not in November, 1999 and for Rs. 2 lacs only. Further it is her case that the amount is repaid. 13. The amount of Rs. 1 lac repaid is admitted by the Plaintiff for a loan given in November, 1999, but for which the writing was executed in March, 2001. It is important to note that the Defendant has admitted receipt of loan in November, 1999. That was admittedly not repaid until at least January, 2001 when the first part payment of Rs. 1 lac is alleged to have been made. The later part payment of Rs. 1 lac in cash alleged by the Defendant is not substantiated or sought to be proved by any receipt. Under these circumstances the Plaintiff has produced the agreement executed between the parties on 21st March, 2001. The agreement dated 21st March, 2001 marked Exhibit B in evidence shows Rs. 4.80 lacs loan during the November, 1999. 14. The Plaintiff has identified the signatures of the Defendant, the witness of the Defendant as well as of himself on the agreement in his evidence. Upon the Plaintiff’s identification of the document for proving the 6 document in evidence and the Defendant’s denial of the execution of the document it would have to be seen from the signature of the Defendant whether the Plaintiff’s case can be accepted. The Defendant’s signature appears on the writing Exhibit B. Identical signatures of the Defendant are seen on the 4 dishonoured cheques. The comparison shows these signatures to be unmistakably of the Defendant. Another signature of the Defendant is by way of acknowledgment of receipt on the handwritten letter of the Plaintiff dated 12.04.2003, part of Exhibit C Colly. Even that signature is identical to the one in writing Exhibit B. 15. The writing is witnessed by the Defendant’s husband. The initial of the Defendant’s husband on the writing is further identical to the signatures on the affidavit of examination-in-chief and is cross-examination. 16. There can be no doubt that the agreement Exhibit B dated 21st March, 2001 was executed by the Defendant. Consequently on 21st March, 2001 the Defendant accepted that the loan of Rs. 4, 80,000/- was to be returned as mentioned therein. This has been sought to be returned on a number of occasions. The total of the 4 cheques dishonoured itself shows Rs. 4 lacs for which cheques were issued from time to time. If only Rs. 2 lacs was loaned to the Defendant as per her case, there was no necessity to issue the cheque for Rs. 3 lacs signed by the Defendant. Besides the amount of Rs. 2 lacs was admittedly 7 to be repaid on or before 25th January, 2000 as admitted by the Defendant’s husband in his cross-examination. That was admittedly not repaid. The first payment by cheque is stated to have been made only in January, 2001 by the Defendant’s husband. As per the case of the Plaintiff it was paid after February, 2001 after the 2 cheques of Rs. 50,000/- each were dishonoured. Under these circumstances the execution of the writing between the parties cannot be rejected. Consequently since much higher amount was to be repaid in or after March, 2001, further cheques have been issued. 17. The cross-examination of the Plaintiff has failed to demolish the case of the Plaintiff about the execution of the agreement. The cross-examination of the Defendant shows the admission that the suit agreement bears a signature which “appears to be his wife’s signature”. Coupled with the fact there was an earlier transaction between the parties relating to a loan of Rs. 2 lacs in November, 1999 which was to be returned by 25th January, 2000, the execution of the agreement Exhibit B falls in place. 18. A reading of the entire evidence, therefore, shows the execution of the suit agreement by and between the parties. Hence issue No.2 is answered in the affirmative. 20. Issue No.3 :- Once the execution of the agreement dated 21st March, 2001 is made out by the 8 Plaintiff, the suit is required to be decreed for the principal amount, the Defendant having been given credit for Rs. 1 lac paid by her by cheque. The agreement shows that the loan amount would not bear any interest. Consequently if the loan amount is paid within a reasonable time, no further interest can be charged. However the Defendant has issued a number of cheques which have been dishonoured and the Plaintiff has written a number of letters which have remained unheaded by the Defendant. The demand notice dated 29.07.2003 of the Plaintiff makes a demand for the interest at the rate of 18% per annum albeit from 21st March, 2001. The interest would be required to be paid by the Defendant at least from the date of demand notice under the Interest Act. Consequently interest at the rate of 18 % per annum on the principal amount of Rs. 3,80,000/- would be required to be decreed from the date of the receipt of the demand notice. The demand notice sent by registered post has been received on 08.08.2003 by the Defendant’s husband. Hence the following order :- :: O R D E R :: 1. There shall be a decree in favour of the Plaintiff and against the Defendant for Rs. 3, 80,000/- with interest at the rate of 18 % per annum from 08.08.2003 until the filing of the suit and thereafter at the rate of 10% per annum from the date of this decree until payment/realization. 9 2. There shall be no order as to costs. ( R. S. DALVI, J.)