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2008 Supreme(Bom) 558
2009(1) ALL.M.R. 794
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE V.C. DAGA
Miss. Shobhita Rani Kaushal – Appellant
Versus
1(a). Ms.Ketty daughter of Late Jehangir H.Dhanjibhoy & Another – Respondent
Summary Suit No.1674 of 1988
Date of Judgment : 15-04-2008
Sakhardande, Ms. Trupti Sanghvi i/b. Bhuta & Associates, Advocates.
Headnote:(A)Civil P.C. (1908), O. 37, Rr. 1, 2, 3:- In a summary suit for enforcement of promissory note to the plaintiff where the right to file written statement is denied, but right to defendant is allowed, the argument that the plaintiff being a money lender the evidence of attorney holder is not accepted and the suit is allowed with 4% interest.
(B)Civil P.C. (1908), O.37, Rr.1, 2, 3:- Where the technical mistake of the advocate in drafting the affidavit of the attorney holder through the plaintiff filed the case is drafted in first person which had not caused any prejudice to the defendant, the mistake was overlooked and the suit is decreed.
(C)Bombay Money Lenders Act (1946), S.2(10) - Civil P.C. (1908), O.37, Rr.1, 2, 3,:- An isolated transaction does not attract the provision of Bombay Money Lenders Act and an objection with regard to the plea is over ruled in view of it not having been taken at an early stage.
(D)Civil P.C. (1908), 0.37, Rr. 1, 2, 3:- Where in a summary suit for enforcement of promissory note in favour of the plaintiff in the absence of written statement by the defendant or cross examination, evidence of the brother of the plaintiff who is the attorney holder and present at the time of transaction and the evidence in categorical and clear inspiring confidence of the court, rightly rejected.
(E)Civil P.C. (1908), O.22, Rr.2, 3, 4, 11:- Where the estate of the deceased is sufficiently covered through some of the legal heirs and representatives of the deceased, suit does not fail just because some of the legal heirs of the deceased is not impleaded.
1. The plaintiff has filed this summary suit for the recovery of Rs.66,500.00 with future interest thereon against the defendants.
THE FACTS:-
2. The factual matrix brought on record is that the original defendant late Jehangir Dhanjibhoy was plaintiff’s family friend That is how, the plaintiff and the original defendant were known to each other. The original defendant late Jehangir had represented that he had applied for financial assistance to the various financial institutions and banks and, shortly, he was likely to get financial assistance from them. In the meanwhile, since he was in need of money for his business establishment run under the name and style of "Hotel Sai Village Shirdi" and Restaurant at Shirdi", he had requested to the plaintiff for hand loan, which was granted to him by way of hand loan by the plaintiff in the sum of Rs.35,000/-secured by Promissory Note dated 1st May, 1985 executed in favour of the plaintiff Miss. Shobhita Rani Kaushal.
3. According to the plaintiff, the amount was paid by cheque drawn on Grindleys Bank plc., as detailed in the pro-note. The said cheque was deposited by the original defendant in his bank account. The amount paid by the plaintiff to the original defendant-late Jehangir was demanded from time to time by the plaintiff but he did not pay. Consequently, plaintiff issued a registered notice on 26th April, 1988. Inspite of written demand, no amount was paid by the late Jehangir. The plaintiff has, therefore, filed this suit for the recovery of Rs.35,000/-with interest thereon against the original defendant Mr. Jehangir (since deceased).
4. Theoriginal defendant Jehangir expired during the pendency of the suit. His heirs and legal representatives, namely; his daughter Ms. Ketty and his wife Smt. Naseem Jehangir Dhanjibhoy were brought on record as defendant Nos.1(a) and 2 by way of substitution.
5. The defendants applied for leave to defend, which was granted by an order dated 17th January, 2008 since Ms. Trupti Sanghvi i/b. Bhuta & Associates appeared for defendant No.2 alone. That is how defendant No.2, Smt. Naseem Dhanjibhoy was permitted to file her written statement. She chose not to file written statement. Consequently, the plaintiff was permitted to prove her claim by filing documents and the affidavit of evidence by way of examination-in-chief. Accordingly, the affidavit of one Shri. Rajesh Kaushal, Power of Attorney holder, was filed on behalf of the plaintiff.
6. The plaintiff also filed original document, namely; promissory note dated 1st May, 1985 in the sum of Rs. 35,000/- in favour of plaintiff, as stated hereinabove carrying signature of the original defendant late Mr. Jehangir; wherein promise was made to pay the amount mentioned therein with interest thereon @2.5% per month and also acknowledged the receipt of amount by cheque bearing No.0032530 drawn on Grindleys Bank plc. The plaintiff has also produced Notice of demand dated 26th April, 1988 issued by her through her Advocate.
EVIDENCE:-
7. Mr. Rajesh Kaushal, Power of Attorney holder of the plaintiff appeared as witness for and on behalf of the plaintiff and examined himself on oath and verified his affidavit (Exhibit-P) and proved Power of Attorney (Exhibit-"P-1") and the promissory note, marked as 3 Exhibits-P-3. Nobody had appeared for the defendant No.1(a). The defendant No.2 did not cross examine plaintiff’s witness. Thus, the documentary and oral evidence brought on record by the plaintiff went unchallenged.
8. With the aforesaid material on record, Mr. Sankpal, Advocate appearing for the plaintiff and Mr. Sakhardande appearing for the defendant No.2 were heard at length.
9. Thesole issue required to be considered is:
Whether plaintiff has proved her claim against the defendants?
SUBMISSIONS:-
10. Mr. Sankpal, learned Counsel appearing for the plaintiff urged that the entire suit claim stands established by oral as well as documentary evidence. He further urged that the promissory note r
