The central legal point established in the judgment is that a loan advanced against a negotiable instrument is excepted from the application of the Bombay Money Lenders Act, 1946.

P.C. :

1. The Summary Suit is for recovery of a sum of Rs. 68,37,96,666/-which comprises of principal amount of Rs. 67 crores and interest of Rs. 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 Rs. 67 crores for business purposes to the Defendant, the amounts of which were duly credited to the Defendant's account through RTGS. Towards repayment of these loans, the Defendant drew cheques of varying sums aggregating to Rs. 67 crores in favour of the Plaintiffs. The Defendant also by its letters (Exhibits D1 to D12 of the Plaint) acknowledged each of the loans advanced and promised to repay the amounts and also to honour the cheques. The cheques were dishonoured upon presentation for “insufficient funds”. The Plaintiffs, therefore, seek to recover the amounts with interest as aforesaid. The Plaintiffs rely upon both the dishonoured cheques as well as the letters, referred to above, for filing the suit as a Summary Suit.

3. The Defendant has filed a reply to the Summons for Judgment through one Manish Maru (who is said to be an authorised representative and to have filed the affidavit on the basis of the records available with the Defendant). The following defences have been raised by the Defendant in its reply:

(i) The suit is not maintainable as a Summary Suit because there was a running account between the parties and the Plaintiffs could not pick up a few items from this running account to found a case under Order 37;

(ii) The cheques issued were a mere collateral security or “comfort” and did not amount to a negotiable instrument;

(iii) There was no valid presentment of the cheques for payment, as the signatory of the cheques had expired before such presentment;

(iv) The signatory of the said cheques, one Amitabh Parekh, who was the Managing Director of the Defendant, was unwell from September 2012 and on 14 December 2012 was admitted to the Breach Candy Hospital in a very critical condition and died on 6 January 2013. It is claimed in the reply that Plaintiff No.2 visited Amitabh Parekh on 22 December and 29 December 2012 in the hospital and “the Defendant suspects that on the documents referred to and relied upon by the Plaintiff in the plaint, the purported signature of the late Mr Parekh would have been obtained during the aforementioned visit taking undue advantage of the fact that at that point in time the late Mr Parekh was under heavy medication and in all probabilities was unable to understand what he was signing”

4. The learned Counsel appearing for the Defendant, in addition to the defences noted above, submitted that the transaction between the parties was a money lending transaction hit by the provisions of Section 10 of the Bombay Money Lenders 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. (1958 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 s