Bombay High Court
Jwaladutta Jankidas Huf vs Jayant Bhavanji Soni And Anr on 9 November, 2022
Author: N.J.Jamadar
Bench: N.J.Jamadar
Digitally signed by
SWAROOP SWAROOP SHARAD
SHARAD PHADKE
PHADKE
Date: 2022.11.09
17:59:31 +0530 sjl 16105 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR JUDGMENT (L) NO.16105 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO.80 OF 2021
Jwaladutta Jankidas HUF ... Plaintiff
versus
Jayant Bhavanji Soni and Ors. ... Defendants
Ms. Sunanda Kumbhat with Mr. Kunal Kumbhat with Ms. Sneha Dey and Ms.
Hemangi M. for Plaintiff.
Mr. Anuj Narula i/by Jhangiani Narula and Associates, for Defendants.
CORAM : N.J.JAMADAR, J.
RESERVED ON : 4th AUGUST, 2022
PRONOUNCED ON : 9th NOVEMBER, 2022
P.C.:
1. This Commercial Division Summary Suit is instituted for recovery of a
sum of Rs.2,62,46,979/- along with further interest @ 16.8 p.a. on the principal
amount of Rs.2,46,50,000/- on the basis of negotiable instruments and balance
confirmation.
2. By an order dated 20th March, 2020, this Court had disposed of
Summons for Judgment (L) No.91 of 2019 by granting leave to the Defendants to
defend the Suit, subject to the Defendants depositing a sum of Rs.2,05,00,000/-. In
Appeal (L) No.4309 of 2020, the Appeal Bench set aside the order of conditional leave
and remanded the Summons for Judgment for afresh hearing as the plaint contained
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reliefs which were outside the purview of Order XXXVII of the Code of Civil
Procedure, 1908 ('Code, 1908'). Thereupon, the Plaintiff took out Interim
Application (L) No.9897 of 2021 seeking amendment in the plaint so as to bring it in
conformity with the requirements of Order XXXVII of the Code, 1908. By an order
dated 3rd May, 2021, the application for amendment came to be allowed and the
Plaintiff was permitted to withdraw the Summons for Judgment already taken out and
file a fresh Summons for Judgment on the basis of the amended plaint. Accordingly,
the instant Summons for Judgment is taken up for determination.
3. The material averments in the plaint can be stated in brief as under :
3.1 The Plaintiff - HUF is represented through its Karta - Anil Nandlal
Kaniya. Jayant Bhavanji Soni - Defendant No.1, was the sole proprietor of Joy
Builders. Defendant No.2 - Bhavin Jayant Soni is the son of Defendant No.1 and also
the authorized representative and mandate holder of Defendant No.1. Jayant
Bhavanji Soni - Defendant No.1 expired on 20 th May, 2021. Defendant Nos.1A to 1C
are the legal representatives of the deceased Defendant No.1, apart from Defendant
No.2.
3.2 Pursuant to the representations of the deceased Defendant No.1 and the
Defendant No.2 that they were dealing in the business of building construction and
required funds to finance a project, the Plaintiff had provided short term financial
assistance to the tune of Rs.2,46,50,000/- during the period 7 th September, 2018 to 31st
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August, 2019. Except the last tranche of Rs.31,50,000/-, rest of the amounts were
credited to the account of the Defendants through banking channels. Defendant Nos.1
and 2 assured and agreed to repay the said loan amount on demand with interest @
16.8% p.a. The Defendants had also executed promissory notes against each of the
advances. The Defendants had also drawn post dated cheques towards repayment of
each tranche of the loan.
3.3 The Plaintiff averred that initially the Defendants did pay interest as
agreed. The Defendants also confirmed the liability to the tune of Rs.2,26,24,240/- as
on 1st April, 2019. However, the cheques drawn by the Defendants towards the
principal amount as well as interest were dishonoured upon presentment. Thereupon,
the Plaintiff called upon the Defendants to repay the entire loan amount along with
agreed interest thereon. As the Defendants committed default in repayment of the
loan amount along with agreed interest thereon, despite service of the notice, the
Plaintiff was constrained to institute this suit.
4. Upon being served with the fresh Summons for Judgment, post
amendment in the Plaint, the Defendants have filed an Affidavit in Reply through
Bhavin J. Soni - Defendant No.2, seeking an unconditional leave to defend the Suit.
At the outset, the impleadment of Defendant Nos.1A to 1C as party Defendants to the
Suit is assailed as under the Will dated 26 th February, 2020 of the Deceased Defendant
No.1, Bhavin J. Soni - Defendant No.2 is a universal legatee. Since the Defendant
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Nos.1A to 1C have executed a declaration accepting the said testamentary disposition
in favour of Defendant No.2, the Summons for Judgment in so far as it is directed
against Defendant Nos.1A to 1C is stated to be misconceived and untenable.
5. On merits, the Defendants contend that a Summary Suit to recover an
unsecured loan is not tenable. The Plaintiff, according to the Defendants, has been
dealing in the business of illegal money lending. The Plaintiff had in the past five
years lent and advanced money to Defendant No.1 on as many as 10 occasions, on
interest. Since the underlying transaction is one of illegal money lending, the Suit to
recover loan without a valid licence is barred by the provisions contained in Section 13
of Maharashtra Money Lending (Regulation) Act, 2014 ('the Money Lending Act).
6. Secondly, the suit cannot be said to be based on the dishonoured
cheques as five of the cheques allegedly drawn by the Defendants towards repayment
of the loan amount were payable in the month of December, 2019, February, 2020 and
March, 2020 and, thus, the amounts covered by those cheques had not become due
and payable on the day of the institution of the Suit. Thirdly, the Plaintiff's claim is
inflated. There is no material in support of the Plaintiff's claim that it had advanced
the last tranche of Rs.31,50,000/- to the Defendants. Even the promissory note for
the said amount of Rs.31,50,000/- allegedly drawn by the Defendants does not contain
any particulars of the consideration having been received thereunder unlike the other
promissory notes which contain the said particulars in respect of the advances covered
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thereunder. Lastly, the Defendants controvert that the Defendant Nos.1 and 2 had
confirmed the liability by executing balance confirmation as of 1 st April, 2019.
According to the Defendants, there are several triable issues. Therefore, the
Defendants are entitled to an unconditional leave to defend the Suit.
7. I have heard Ms. Kumbhat, learned Counsel for the Plaintiff and Mr.
Rajiv Narula, learned Counsel for the Defendants at some length. With the assistance
of the learned Counsel for the parties, I have perused the pleadings, Affidavit in Reply,
Affidavit in Rejoinder and the material on record.
8. Ms. Kumbhat, learned Counsel for the Plaintiff would urge that the
Defendants could not dispute and have not disputed that the Plaintiff did advance a
sum of Rs.2,15,00,000/- to the Defendant No.1 through banking channel. By taking
an undue advantage of the fact that the Plaintiff had lent an amount of Rs.31,50,000/-,
placing reliance on the assurance of Defendant Nos.1 and 2 that an instrument would
be issued to cover the said amount of Rs.31,50,000/-, the Defendants are falsely
contending that the Plaintiff had not lent the said amount of Rs.31,50,000/-. In the
face of clear and explicit admission of the receipt of the amount to the tune of
Rs.2,15,00,000/- coupled with the execution of the balance confirmation as of 1 st
April, 2019, the defences now sought to be raised on behalf of the Defendants can only
be said to be sham and illusory, submitted Ms. Kumbhat.
9. It was urged that apart from the bald assertion that the Plaintiff has been
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dealing in the business of illegal money lending, the Defendants have not brought on
record any credible material to bolster up this defence. In any event, the transaction
would be covered by the exclusionary clauses (j) and (l) of sub-Section (13) of Section
2 of the Money Lending Act, 2014.
10. Per contra, Mr. Narula would urge that the series of transactions
evidencing the advance of money, lead to no other inference than that of illegal money
lending as the elements of system, continuity and repetition are clearly made out. In
such circumstances, the question as to whether the recovery of the loan in question is
barred by Section 13 of the Act, 2014, would be a matter for adjudication and, if that is
the case, the Defendants are entitled to an unconditional leave to defend the Suit.
11. The second limb of the suit being based on balance confirmation is
equally infirm, urged Mr. Narula. The Defendants have categorically contended that
the Defendant Nos.1 and 2 have not executed the balance confirmation as of 1 st April,
2019. Undisputedly, the purported balance confirmation has not been accepted by the
Plaintiff. That again gives rise to a triable issue. In any event, there is no material to
substantiate the claim of the Plaintiff that it had advanced the last tranche of
Rs.31,50,000/-. The said claim would, thus, stand beyond the purview of Order
XXXVII of the Code, submitted Mr. Narulla.
12. To begin with, as noted above, there is not much controversy over the
fact that the Plaintiff had advanced loan to the Defendant No.1 over a period of time
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commencing from 7th September, 2018 to 25th March, 2019. The claim of the Plaintiff
that it had advanced the loan through banking channels is substantiated by the
certificate issued by the State Bank of India and the HDFC Bank. Likewise, it is rather
incontrovertible that the Defendants received the said tranches of amounts and had, in
turn, drawn demand promissory notes undertaking to pay the sums therein on demand
along with interest @ 16.8% p.a. The demand promissory notes acknowledge the
receipt of the loan amount on the respective dates through banking channels. In the
circumstances, the claim of the Plaintiff that it had advanced money to the Defendant
No.1, so far as first seven tranches, can be said to have been substantiated beyond the
pale of controversy.
13. The last tranche of Rs.31,50,000/- allegedly advanced by the Plaintiff to
the Defendant No.1 is, however, not substantiated by the material on record. I find
substance in the submission of Mr. Narula that if the documents executed in respect of
the first seven tranches and the documents in respect of the last tranche of
Rs.31,50,000/- are compared and contrasted, it becomes evident that there is no
contemporaneous document to lend support to the Plaintiff's claim that it had
advanced Rs.31,50,000/-, in cash. Thus, the question as to whether the Plaintiff had
also advanced a sum of Rs.31,50,000/- in cash is in the arena of controversy. This
issue surely warrants adjudication. I am, therefore, persuaded to hold that to the
extent of the last tranche of Rs.31,50,000/-, the Defendants have succeeded in making
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out a fair and reasonable defence.
14. This propels me to the consideration of the question of grant of leave in
the context of indisputable advance of Rs.2,15,00,000/-. Principal defence based on
which an unconditional leave is sought is that of the transaction being one of illegal
money lending sans valid licence and, thus, hit by the interdict contained in Section 13
of the Money Lending Act, 2014. Mr. Narula, learned Counsel for the Defendants
urged with a degree of vehemence that the series of transactions between the parties
unmistakably leads to an inference that the Plaintiff advanced money to the
Defendants as a part of money lending business. Tens of transactions cannot be
wished away as isolated instances of lending money on interest. Apart from the
transactions in question, according to Mr. Narula, there were other transactions
between the Plaintiff and Defendants whereunder the Plaintiff lent money on interest.
Therefore, the said transactions clearly fall within the mischief which the Money
Lending Act, 2014 professes to address.
15. To lend support to the aforesaid submission, the learned counsel for the
defendants placed a strong reliance on the judgment of this Court in the case of Sha
Damji Deraj Vs. Megraj Bhikumchand and Co. 1, wherein in the context of the
provisions of Bombay Money-Lenders Act of 1946, it was enunciated that it would be
sufficient to say that looking to the provisions of that Act if a suit is filed under Order
1 1958 SCC OnLine Bom 110
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XXXVII and if the Money-lenders Act applies to such a suit, in any view of the case,
unconditional leave must be given to the defendant.
16. The aforesaid pronouncement was followed by another learned Single
Judge of this court in the case of Yellava Nagappa Kunchikorve Vs. Kantabai Malli 2.
In the said case, the plaintiff had approached the Court with a case that he is carrying
on business of money lending. The learned Single Judge observed thus :-
"8 In my view the issue decided in the case of Sha Damji Deraj in
Bombay Law Reporter 1366 holding that if suit is filed under Order
XXXVII of Code of Civil Procedure and if the money lenders Act applies
to such a suit, in any view of the case unconditional leave must be given to
the Defendants has not been distinguished or dealt with in the Order
dated 1st July, 2009 passed in the case of Champalal Saaremal Jain
(supra). In my view, the facts of the case of Champalal Saaremal Jain
are totally different and therefore the Order dated 1 st July, 2009 passed
by D.G.Karnik, J. does not apply to the facts of this case. At this
juncture, it must also be pointed out that it is common ground that the
provisions of Money Lenders Act are applicable as set out by the Plaintiff
himself in paragraphs (6) and (10) of the plaint. In my view, in view of
the admitted facts that alleged transaction has been governed by the
provisions of Money Lenders Act, in view of the Judgment delivered by
this Court in the case of Sha Damji Deraj (supra) Defendant is entitled
to unconditional leave to defend the suit............."
(emphasis supplied)
17. In contrast to this, the learned counsel for the plaintiff urged that the
aforesaid pronouncements are of no assistance to the cause of the defendants as, in the
said cases, there was no controversy over the fact that the plaintiff therein was
2 2012(3) Mh.L.J. 856
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carrying on business of money lending. In the case at hand, according to the learned
counsel for the plaintiff, there is next to no material to draw an inference that the
plaintiff deals in the business of money lending.
18. The learned counsel for the plaintiff also banked upon the following two
clauses of sub-section (13) of section 2 of the Money Lending Act, 2014 which defines
a loan as :
"Loan" means an advance at interest whether of money or in
kind but does not include :
................
( j) an advance of any sum exceeding rupees [three lakhs] made on
the basis of a negotiable instrument as defined in the Negotiable
Instruments Act, 1881, other than a promissory note ;
................
(l) an advance made bonafide by any person carrying on any
business, not having for its primary object the lending of money, if
such advance is made in the regular course of his business."
19. The learned counsel for the plaintiff submitted that the plaintiff has in
fact advanced loans on the basis of the negotiable instrument other than a promissory
note. Support was sought to be drawn to the aforesaid submission from the cheques
issued by the defendants towards the repayment of the distinct loan amounts and
covering letters under which those cheques were drawn. The issuance of those
cheques towards repayment of the loan amount, though not on the day of advance,
according to the learned counsel for the plaintiff, was part of one and the same bargain
and thus constitute the negotiable instruments on the basis of which the loans were
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advanced.
20. In order to properly appreciate the aforesaid submission, it would be
apposite to note, in a tabular fashion, the date of advance, the date on which the
cheque was drawn towards discharge of the said liability and the date of the letter
under which the cheque was drawn :
Sr. Amount The date of Date of covering The date on which the
No. (in Rs.) advance letter under which cheque was payable
the cheque was
drawn
1. 50,00,000/- 7th September 2018 13th October 2018 2nd September 2019
2. 50,00,000/- 6th October 2018 18th December 22nd September 2019
2018
3. 30,00,000/- 17th November 2018 2nd April 2019 10th February 2020
4. 20,00,000/- 11th December 2018 2nd April 2019 4th February 2020
5. 15,00,000/- 1st January 2019 3rd January 2019 27th December 2019
6. 25,00,000/- 18th March 2019 12th August 2019 13th March 2020
7. 25,00,000/- 20th March 2019 12th August 2019 20th March 2020
21. The aforesaid chart indicates that the covering letters which were issued
towards repayment of the principal amount were, in any event, not issued on the date
the distinct loans were advanced. There is an interval of time.
22. The learned counsel for the plaintiff submitted that interval of time does
not matter, if the intent of the parties was to advance the loan on the basis of
negotiable instrument. To bolster up this submission, the learned counsel for the
plaintiff placed a strong reliance on a judgment of this Court in the case of Tradelink
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Exim (India) Pvt. Ltd. Vs. Tulip Land and Developers Pvt. Ltd. 3. In the said case, the
challenge to the enforceability of the transaction as being barred by the provisions of
Money Lending Act, 2014 was repelled on the premise that the delivery of the
cheques towards repayment of the loan amount formed part of a composite
transaction.
23. While arriving at the aforesaid conclusion, the learned Single Judge has
relied on the judgment of a Division Bench of this Court in the case of Parekh
Aluminex Ltd. Vs. Ashok Commercial Enterprises and Anr. 4, wherein the Division
Bench has, inter-alia, observed as under :
"20 In our view, in the present case, the loans were advanced by the
respondents to the appellants on the basis of negotiable instruments other
than promissory notes. This is clear from the facts and circumstances of
this case especially the manner in which the amounts were advanced and
cheques were drawn. The fact that the cheques were forwarded by the
appellants to the respondents after the loans were advanced by RTGS
transfers makes no difference. The amounts were advanced by the
respondents to the appellants and the cheques and the bills of exchange
were issued by the appellant to the respondents as a part of one composite
agreement. In other words, this agreement was entered into at the same
time. This is not a case where the amounts were first advanced and
thereafter the parties agreed that the borrower would draw the cheques
and bills of exchange and execute the said writings. The entire
arrangement was agreed upon at the same time. The cheques and bills of
exchange were forwarded subsequently in accordance with and pursuant
to this agreement which had already been arrived at. There is nothing on
record that militates against this view. The appellant has not even
pleaded anything to the contrary. It is not the appellant's case that the
cheques and the bills of exchange were drawn and the writings were
3 Summons for Judgment No 47 of 2017
in COMSS/188/2018 dt. 31-10-2017
4 2014 SCC OnLine Bom. 2304
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executed independent of the loan pursuant to any understanding arrived
at subsequently. It follows therefore that the said loans were made on the
basis of the said negotiable instrument viz. the cheques and the bills of
exchange drawn by the appellants in favour of and payable to the
respondents.
21. The mere fact that a negotiable instrument is handed over
subsequent to the loan being disbursed makes no difference if the loan was
made on the basis of the negotiable instrument. Where it is agreed as part
of a composite agreement to advance a loan against a negotiable
instrument covered by section 2(9)( f ), it makes no difference that the
negotiable instrument is handed over subsequently.
(emphasis supplied)
24. Reliance was also placed on a judgment of this Court in the case of
Motilal Laxmichand Salecha, HUF Proprietor of M/s. Mala Investments Vs. M/s.
Mour Marbles Industries Pvt. Ltd. & Ors. 5, wherein, a Division Bench of this Court,
after adverting to the provisions contained in the Money Lending Act, 2014,
distinguished the decisions in the cases of Sha Damji Deraj (Supra) and Yellava
Nagappa Kunchikorve (Supra) opining inter-alia that, in the said cases, there was no
dispute about the applicability of the provisions of Bombay Money Lending Act.
25. In the light of the aforesaid enunciation of law, reverting to the facts of the
case, a perusal of the table extracted above, would indicate that the time lag between
the date of advance and, date of issue of covering letter containing the cheques
towards repayment of the corresponding loan amount is considerable, except in case
of Item No.5, in which case the covering letter was issued after a couple of days.
5 SJ/64/2016 in COMSS/404/2016 dt.18-04-2018
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Evidently, the element of proximity is not borne out. It would therefore be rather
difficult to draw an inference that the cheques were drawn on the date on which the
loan was advanced or immediately thereafter, so as to form part of one and the same
transaction.
26. The fact that the loan was advanced against promissory note does not
advance the cause of the Plaintiff. Under clause (j) of sub-Section (13) of Section 2 of
the Act, 2014 the advance on the basis of negotiable instrument falls beyond the ambit
of 'loan', provided instrument should be other than a promissory note.
27. The aforesaid inferences, according to Mr. Narula, ought to lead the Court
to grant an unconditional leave. Amplifying the submission, Mr. Narula would urge
that once the Court comes to the conclusion that the advance does not fall within the
exclusionary clause (j), unconditional leave must follow. I am afraid to accede to this
submission. Various exclusionary clauses under sub-Section (13) of Section 2 of the
Money Lending Act, 2014 appear to be mutually exclusive and disjunctive. If the
advance falls within any of the exclusionary clauses, it would not constitute a 'loan'
within the meaning of sub-Section (13) of Section 2 of the Act, 2014. Therefore, the
question as to whether the transaction in question would fall within the exclusion
clause (l) is required to be independently considered de hors the fact that the advance
may not be excluded from the ambit of 'loan' under clause (j) of sub-Section (13) of
Section 2 of the Act, 2014.
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28. While construing clause (l) extracted above, this Court has consistently held
that mere advance of money on interest, by itself, is not sufficient to bring the case
within the tentacles of the provisions of Money Lending Act, 2014. An advance made
bonafide by any person who carries on any business if such advance is made in the
regular course of business is excluded by clause (l) provided the primary object should
not be lending of money, on interest. To qualify as a business, a course of lending
money would require the elements of system, continuity and repetition. One or few
instances of lending money on interest may not satisfy the description of lending
money as a business.
29. A profitable reference in this context can be made to a judgment of this court
in the case of Base Industries Groups & Anr. Vs. Mahesh P. Raheja & Ors. 6, wherein
the learned Single Judge had traced the pronouncements on the transactions which fall
within the mischief of money lending and culled out the legal propositions in the
following words :
"36. From this discussion, the following propositions
emerge:
(a) Not every loan is axiomatically a money-
lending transaction for the purposes of the 1946 or
the 2014 Acts. There is no such presumption in
law.
(b) It is doing of the 'business of
money-lending' that attracts the provisions of the
6 2019(3) All.M.R. 571
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statute. In interpreting the phrase, the correct
emphasis is on the word 'business', not 'money-
lending'. It is the word 'business', and not the
expression 'money-lending', that is determinative.
Simply put, every instance of lending money is not
money-lending. Not every lender is a Shylock.
(c) To constitute 'business', a single isolated
instance does not, and even several isolated stray
instances do not, constitute 'the business of money-
lending'. To be engaged in the 'business of money-
lending', the activity must be systematic, regular,
repetitive, and continuous, and must generate an
appreciable revenue. The fact that the borrower is a
stranger to the lender does not on its own make the
latter a 'money-lender'.
(d) A loan recovery action is not barred
merely because there is a loan. It has to be shown
that the loan was part of 'the business of money-
lending'.
(e) A plaintiff seeking a recovery of a loan is not
required to show that his suit is not barred by the
Money Lenders Act. It is always for the defendant
who puts up money-lending as a defence to show
that the transaction is forbidden by the Money
Lenders Act."
30. The aforesaid pronouncement underscores that the emphasis is on the word
"business" and not "money lending". It has to be seen whether the instances of
money lending were by way of "business". Number of instances, by themselves, are
not determinative. Several isolated stray instances do not constitute a business of
money lending. Onus is on the Defendant who puts up illegal money lending as a
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defence to show that the transaction is forbidden by the Act of 2014.
31. It is true that, in the case at hand, there were a series of advances by the
Plaintiff to the Defendant No.1 on interest. If analyzed through the aforesaid legal
prism, that by itself may not be sufficient, at this stage, to draw an inference that the
Plaintiff deals in the business of money lending.
32. Another factor which in itself furnishes a surer foundation for a summary
suit is the execution of balance confirmation by the Defendants on 1 st April, 2019.
Defendant Nos.1 and 2 have acknowledged the liability for a sum of Rs.2,26,24,340/-
as of 1st April, 2019 under balance confirmation (Exhibit AA). In view of the
pronouncement of the Full Bench of this Court in the case of Jyotsna K. Valia Vs.
Parekh & Co. 7, a suit based on duly confirmed accounts by the defendant is tenable as
a summary suit. Paragraph 29 of the said judgment reads as under :-
"29. In so far as the 'settled account is concerned,' it is no doubt
true as noticed by the learned single Judge, that the various
judgments adverted to, for holding that the summary suit would lie on
a settled account, either of the Privy Council or of the Supreme Court
did not arise from suits filed as summary suits. However, after the
judgment of the Privy Council (Elvira L. Rodrigues) Sequeira (supra)
which has been considered by the Supreme Court in Hiralal & Ors.
(supra), a summary suit on a settled account, duly confirmed by the
Defendant is maintainable as it is an acknowledgment by the
Defendant in the ledger in which mutual accounts have been entered
7 2007(4) Mh.L.J. 517
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and the accounts settled between them. Such settling of accounts gives
rise to a written contract on a fresh cause of action, with an implied
promise to pay the amount settled. A summary suit would therefore lie
on 'Settled accounts duly confirmed by the defendants. Issue (1) is
answered accordingly."
33. Mr. Narula attempted to wriggle out of the situation by canvassing a
submission that the Defendants have contested the genuineness and reliability of the
balance confirmation. A contention in the Affidavit in Reply seeking leave to defend
that the Defendants had not executed balance confirmation, without anything more,
would not give rise to a triable issue as that would render the determination hing upon
the binary of traverse or non-traverse. There is no contemporaneous material to show
that the Defendants contested the said position. Even otherwise, what the balance
confirmation records is only undisputed advances by the Plaintiff to the Defendants.
34. In the totality of the circumstances, especially indubitable advance of a sum
of Rs.2,15,00,000/-, further reinforced by the balance confirmation dated 1 st April,
2019, in my view, the Defendants do not deserve an unconditional leave to defend the
Suit, even though the defences of contentious advance of the sum of Rs.31,50,000/-
and the suit being barred by the provisions contained in Section 13 of the Act, 2014,
are construed to raise triable issues. Hence, I am persuaded to grant a conditional
leave to the Defendants to defend the Suit subject to deposit of Rs.2,15,00,000/-.
35. Hence, the following order :
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ORDER
(i) Leave is granted to the Defendants to defend the Suit subject to the Defendants depositing in this Court a sum of Rs.2,15,00,000/- within a period of six weeks from the date of this order.
(ii) If the aforesaid deposit is made within the stipulated period, this suit shall be transferred to the list of Commercial Causes and the Defendants shall file their written statement within a period of four weeks from the date of deposit.
(iii) If this conditional order of deposit is not complied with within the aforestipulated period, the plaintiff shall be entitled to apply for an ex-parte decree against the defendants after obtaining a non-deposit certificate from the Prothonotary and Senior Master of this Court.
(iv) The summons for judgment stands accordingly disposed of.
( N.J.JAMADAR, J. ) SSP 19/19