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TMI Blog2014 (2) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Defendant may be invested by the Prothonotory and Senior Master of this Court in a fixed deposit in a Nationalized Bank initially for a period of two years and thereafter to be renewed from time to time till the disposal of the present suit; (v) Suit to appear on board before the learned Judge taking commercial causes after fourteen weeks, i.e. on 16 June 2014. - Summons for Judgment No. 21 of 2013 In Summary Suit No. 203 of 2013 - - - Dated:- 24-2-2014 - S. C. Gupte, J. For the Plaintiffs : Virag Tulzapurkar with Sandeep Parikh, Abhishek Sawant, Amit Pradhan i/b. M/s. Subhash Pradhan Co. For the Defendant : Sanjay Jain with Rohit Chakraborty i/b. M/s. S. Mahomedbhai Co. ORDER The Summary Suit is for recovery of a sum of ₹ 68,37,96,666/- which comprises of principal amount of ₹ 67 crores and interest of ₹ 1,37,96,666/- calculated at the rate of 12% p.a. The suit is filed inter alia on the basis of dishonoured cheques. 2. The Plaintiffs had given short term loans aggregating to ₹ 67 crores for business purposes to the Defendant, the amounts of which were duly credited to the Defendant's account through RTGS. Towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders Act, 1946. The learned Counsel submitted that the present suit to recover a loan given by the Plaintiff as a act of money lending without holding a valid licence under that Act is barred by the provisions of the Bombay Money Lenders Act. The learned Counsel relied upon the Judgments in the cases of M/s.Rushabh Precision Bearings Ltd. Vs M/s.Marine Container Services (Indai) Pvt.Ltd. 1999(3) Bom.C.R.760, Bharati Surendra Khandhar Vs Deepak M. Shah, Summons for Judgment No.727/1998 decided on 8.10.2001, Jatin Jashwantrai Bhagat Vs Dayaram Waghji Thakar Summons for Judgment No.309/2006 decided on 4.10.2006, Sha Damji Deraj Vs Megraj Bhikumchand Co., Bombay Law Reporter Vol.LX 1366 and Khyati Realtors Pvt. Ltd. Vs M/s. Zenal Construction Pvt. Ltd., Company Petition No.243/2012 decided on 29.8.2013 in support of his contention. The learned Counsel also submitted that the letters acknowledging the loans advanced and purporting to promise to repay the loans, are insufficiently stamped and that these cannot be led in evidence on that account. 5. As for the defence of running account, the learned Counsel relied upon the statement of account between the parties as refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all drawn much prior to the alleged hospitalization of Amitabh Parekh. Apart from the cheques, there are letters acknowledging (i) the amounts lent by the Plaintiff to the Defendant aggregating to ₹ 67 crores and (ii) the cheques issued towards repayment of such amounts as also promissory notes executed in relation thereto. The execution of the cheques as well as the various writings referred to above were never disputed at any time by the Defendant till the filing of the present suit. Even in the reply filed to the Summons for Judgment, what is claimed is that there is a suspicion that the signatures of late Amitabh Parekh would have been obtained during the visits of Plaintiff No.2 to the hospital to meet late Amitabh Parekh, when the late Parekh in all probabilities was unable to understand what he was signing . The defence, on the face of it, is a matter of conjecture on the part of the deponent of the affidavit, who in any event claims to be an authorized signatory of the Defendant (a public limited company) who could not, and obviously even does not, claim any personal knowledge of the execution of these cheques or documents or indeed the circumstances attending upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the court is satisfied that the money-lender did not hold a valid licence, it shall dismiss the suit.] (5) Nothing in this section shall affect-- (a) suits in respect of loans advanced by a money- lender before the date on which this Act comes into force; (b) the powers of a Court of Wards, or an Official Assignee, a receiver, an administrator or a Court under the provisions of the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920 or any other law in force corresponding to that Act, or of a liquidator under the Companies Act, 1956, to realise the property of a money-lender. The defence on the basis of these provisions is that the monies were advanced by the Plaintiffs to the Defendant admittedly by way of a loan; that this loan is covered under the definition of 'loan' under Section 2(9) of the said act; that the present suit is 'a suit to which this Act applies' within the meaning of Section 2(17) of the said Act; that at the time when the loan was advanced, the Plaintiffs did not have any valid licence under the said Act; and that the suit is, therefore, liable to be dismissed. The learned Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of both the original advance and the negotiable instrument is permissible under the said Act, in a case where a negotiable instrument is issued in consideration of an advance already made, the negotiable instrument cannot be enforced by reason of the provisions of the said Act. 12. The Judgments relied upon by Mr. Jain, the learned Counsel for the Defendant, in support of his contention that the suit is barred under Section 10 of the said Act are not relevant for our purposes, since, as explained by me above, the suit is not for recovery of a loan, but based on negotiable instruments which are dishonoured on presentation for payment. There is absolutely no substance in the defence of the bar under Section 10. It is neither a bonafide defence nor a credible defence. 13. The other defence of the Defendant is that the letters relied upon by the Plaintiffs cannot be read in evidence as documents containing an agreement to pay, for want of payment of stamp duty thereon. The submission is that if the letters are mere acknowledgements of loans and cheques issued, a case under Order 37 cannot be founded on them and on the other hand, if they are read as agreements to pay, they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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