This summary suit is based on the alleged Promissory Note dated 23rd March, 2008 Ex."A" to the plaint. Some of the relevant facts are setout as under :

2. It is the case of the Plaintiff that he is carrying on business of money lending. It is alleged that Defendant had executed the Demand Promissory Note on 23rd March, 2008 for valuable consideration being a sum of Rs.80,000/- received by the Defendants from the Plaintiff against and on the basis of execution and handing over of a Demand Promissory Note. It is the case of the Plaintiff that the Defendant failed to pay the said amount and kept the Plaintiff on false and baseless promises and therefore the Plaintiff through advocate notice dated 24th November, 2008 called upon the Defendant to pay aggregate amount of Rs.80,000/- with interest. It is the case of the Plaintiff that though the Defendant received the notice, neither any reply was given nor was any repayment made to the Plaintiff. Plaintiff, accordingly, filed this suit for recovery of Rs. 94,432.87 ps. with interest on Rs.80,000/- from the date of filing the suit till payment or realisation. The Plaintiff, took out Summons for Judgment bearing No. 173 of 2010.

3. In response to the Summons for Judgment, the Defendant filed her affidavit in reply. It is the case of the defendant that summary suit procedure is not applicable to this suit as admittedly the provisions of Bombay Money Lenders Act, 1946 applies to this suit and since it is hit by the provisions of Bombay Money Lenders Act 1946, the defendant is entitled to unconditional leave.

4. The defendant has also contended that the suit is barred by period of limitation. In the affidavit in reply the Defendant has denied any transaction with the plaintiff and also denied her signature on the alleged Promissory Note. It is alleged by the Defendant that the alleged Promissory Note is manipulated and is a forged documents. It is also alleged by the Defendant that no such notice as referred by the Plaintiff in the plaint at Ex."B" has been received by the Defendant. The Defendant has alleged that there are triable issues and therefore she is entitled to unconditional leave. I have heard the learned advocates and have bestowed my anxious consideration to the rival submissions made by the learned advocates.

5. In support the first defence raised by the Defendant that in view of the applicability of the provisions of Money Lending Act, the suit is hit by provisions of the said Act, the learned Advocate appearing for the Defendant placed a reliance upon the judgment of this court in the case of Sha Damji Deraj v/s. Megraj Bhikumchand And. Co. reported in (1958) LX Bombay Law Reporter 1366. The Learned Advocate invited my attention to the last para of the said Judgment at para 1368. This court in the said judgment followed the Judgment of this court in VithanKrishna v/s. Sogmal Nathmal reported in (1957) 59 Bombay Law Reporter 1043 which reads thus:-

“We are, therefore, unable to uphold this submission of Mr.Walawalkar; but it is really not necessary to determine it for the purpose of determining this appeal.”

Therefore, this particular contention was not expressly negatived by the Court. But in my opinion, it is unnecessary in view of this observation of Mr.Justice Tendolkar expressly to decide in this revision application that the provisions of O.XXXVII do not apply to a suit to which the Bombay Moneylenders Act of 1946 applies. It would be sufficient to say that looking to the provisions of that Act if a suit is filed under O.XXXVII and if the Moneylenders Act applies to such a suit, in any view of the case unconditional leave must be given to the defendant.

6. After following the said Judgment, the Hon'ble the then Chief Justice Shri M.C.Chagla granted unconditional leave to the defendant to defend the suit. Mr.Jain, the learned advocate appearing for the Plaintiff invited my attention to the order dated 1st July, 2009 in Summons for Judgment No. 462 of 2007 in