: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.407 OF 2005 SUMMONS FOR JUDGEMENT NO.407 OF 2005 SUMMONS FOR JUDGEMENT NO.407 OF 2005 IN IN IN SUMMARY SUIT NO.4400 OF 2001 SUMMARY SUIT NO.4400 OF 2001 SUMMARY SUIT NO.4400 OF 2001 Sushila H.Jhunjhunwala .. Plaintiff. Versus Prabhat General Agency & Anr. .. Defendants. Mr.Pradeep Sancheti with Mr.S.C.Naidu i/b.C.R.Naidu for plaintiff. Mr.Kishore Jain i/b.Mehta & Girdharlal for defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 6th October, 2008. DATE : 6th October, 2008. DATE : 6th October, 2008. P.C. :- P.C. :- P.C. :- 1. The suit is filed for recovery of amount of Rs.5.39 lacs and odd on the basis of a receipt purported to have been signed by one Mr.Gourishankar on the letter head of a receipt book of defendant No.1 dated 6.7.1995 as also on the basis of another receipt dated 18.12.1995. : 2 : The said Mr.Gourishankar is said to have issued cheques in favour of plaintiff towards repayment of interest of Rs.27,000/-. The plaintiff contends that the defendants have been paying interest from time to time and the principal amount of Rs.3.00 lacs was paid by a cheque and the said cheque has been duly cleared and the defendants have received the amount of Rs.3.00 lacs. 2. I have heard learned Advocates on both the sides. An effort was made by learned Advocate for the plaintiff to point out that Mr.Gourishankar, who has tendered signatures on behalf of defendant No.1 is a responsible person and his signature has the effect of binding defendants in regard to the suit loan transaction. It was sought to be contended that the payment of interest by defendant No.1 towards the principal sum of Rs.3.00 lacs is not disputed and hence the transaction as a whole is accepted and hence the summary suit is maintainable and the summons for judgement should be made absolute. 3. After having perused the record, it is seen that the documents on the basis of which the present suit is filed are in the nature of receipts purported to be signed by said Mr.Gourishankar. In the first place, a summary : 3 : suit instituted on the basis of receipts simplicitor is not maintainable and is a ground for granting unconditional leave to defend. The said Mr.Gourishankar is not shown to be a person as the Power of Attorney of the defendants and signatures of said Mr.Gourishankar, who apparently played some vital role in the functioning of defendants cannot bind the defendants in terms of a loan transaction and to that extent, the documents which are purported to be signed by said Mr.Gourishankar may not bind defendants and hence the defendants have been able to make out a prima-facie case for grant of unconditional leave to defend. 4. It was argued that the receipt of Rs.3.00 lacs by the defendants is made out and, therefore, the defendants should be put to terms. It is well settled that institution of a summary suit when the payment is made by a cheque to a borrower is not permissible and to that extent, mere payment of money to the defendants by itself, may not be a ground to entertain a summary suit, as in my view, pre conditions laid down in Order 37 Rule 2 of the Code of Civil Procedure are not complied with. 5. Keeping in view the aforesaid observations, the : 4 : defendants are entitled to unconditional leave to defend the suit, I pass the following order :- O R D E R O R D E R O R D E R i) Unconditional leave to defend the suit to both the defendants is granted. ii) Defendants to file written statement in the court directly on 1.12.2008. iii) Suit stands expedited. 6. Suit stands adjourned to 1.12.2008 for filing written statement. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)