JUDGMENT:

1. Order dated August 11, 2021 passed by the City Civil and Sessions Court, Mumbai, rejecting Petitioners/Plaintiffs’ application for summary judgment is the subject matter of challenge in the present Petition.

2. Petitioners are the Plaintiffs in commercial suit instituted for recovery of money with interest against defendant, who is Respondent herein. The case pleaded in plaint is that Plaintiff No.1, who is in business of trading in property and financing, was approached by Defendant for financial assistance in the form of loan of Rs.50,00,000/-. Plaintiffs paid Rs.50,00,000/-to the Defendant by RTGS on May 27, 2015. It is alleged that Defendant has executed a Bill of Exchange in favour of the Petitioners/ Plaintiffs payable on demand after the due date of June 26, 2015, which however is silent on interest payable, if any. Defendant issued letter dated August 5, 2015 to Plaintiffs confirming receipt of amount of Rs.50,00,000/-towards business loan, undertook to repay the same and issued two post dated cheques of bearing date October 30, 2015 for Rs.50,00,000/-towards principal amount and Rs.2,33,333/-towards interest. Additionally, one more Bill of Exchange was executed by Defendant for the said amount of Rs.50,00,000/-with due date of October 30, 2015. On presentation, the cheques were dishonoured with the remark ‘insufficient funds’.

3. After coming across a public notice regarding auction of properties of Respondent/Defendant, notice dated June 28, 2019 was issued at the behest of Plaintiffs demanding the due amount along with interest. The Defendant replied the notice on August 9, 2019 disputing the notice and raising the defence of Plaintiffs not possessing licence under the provisions of Maharashtra Money-Lending (Regulation) Act, 2014. Plaintiffs presented Summary Suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (for short ‘Code’), before the City Civil Court at Bombay on or about August 30, 2019. The same however came to be registered as Commercial Suit No.134 of 2019. Defendant made an unsuccessful attempt to seek dismissal of the suit for non-compliance of pre-institution mediation enumerated under section 12A of the Commercial Courts Act, 2015 and its Notice of Motion came to be dismissed by order dated March 10, 2021. In the meantime, Plaintiffs filed Summons for Judgment possibly under an impression that the suit was treated as a summary suit under the provisions of Order XXXVII of the Code. After noticing the provisions of Order XIII A of the Code, leave was granted to Plaintiffs to register the Chamber Summons as application for Summary Judgment. In the meantime, Defendant was permitted to file Written Statement by an order dated March 10, 2001, in which it denied various contentions raised in the Plaint in addition to raising the issue of limitation.

4. When the application for Summary Judgment No.2 of the 2019 was pressed before the City Civil Court, the same has been rejected by order dated August 11, 2021 holding that there are triable issues involved in the suit. That order is subject matter of challenge in the present Petition.

5. Appearing for the Petitioners/Plaintiffs Mr. Jain the learned Counsel would submit that the suit is based on Bills of Exchange dated May, 27 2015 and October 30, 2015, execution of which is not under dispute. He would submit that the only defence raised by Defendant while replying Plaintiffs’ notice on August 9, 2019 was about non-possession of moneylenders license, which is not a requirement for suit based on Bills of Exchange as per the settled position of law. He would submit that the admission of the claim can be inferred on the basis Defendant’s letter dated August 5, 2015, issuance of post-dated cheques and non-denial of receipt of Rs.50,00,000/-by Defendant. Mr. Jain would take me through the provisions of second Proviso to sub-rule 5 of Rule 3 of Order XXXVII of the Code in support of his contention that since there is an admission of