A suit for recovery of a loan advanced by a plaintiff through a cheque is not maintainable as a summary suit.

The order passed in I.A.No.9107 of 2007 in O.S.No.1988 of 2007, a petition filed under Order XXXVII Rule 3(5) of CPC on the file of the XIIth Assistant Judge, City Civil Court, Chennai, is under challenge in this revision. The defendant in O.S.No.1988 of 2007 had filed the said application seeking unconditional leave to the petitioner/defendant to defend the summary suit by way of filing written statement in O.S.No.1988 of 2007.

2.Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent and considered their respective submissions.

3.According to the learned counsel for the revision petitioner, the defendant has not borrowed any amount under the impugned cheque dated 20.2.2006 for Rs.3,27,500/-. According to him, he was appointed by the plaintiff as a power of Attorney agent to sell his lands and that on the basis of the power of Attorney the defendant had negotiated with third party for the sale of the said land and had issued a cheque dated 20.2.2006 for Rs.3,27,500/-. But, he had not borrowed any amount under the impugned cheque dated 20.2.2006. Even in paragraph 8 to the plaint, the plaintiff has stated that the defendant is liable to render accounts in respect of the sale transaction entered into between the third parties and the defendant on behalf of the plaintiff under the deed of power of attorney.

4.Relying on 2007(4) CTC 257 (Jyotsna K.Valia Vs. T.S.parekh & Co.), the learned counsel for the revision petitioner would contend that the suit itself is not maintainable under Order XXXVII since the suit was not filed for recovery of the amount due under the impugned cheque or bill of exchange. The relevant observation in the said judgment runs as follows:-

"Reference may now be made to a judgment on honoured cheque, in the case of Purnima Jaitly Vs. Ravi Bansi Jaisingh, 2004(1) Mh.LJ 114. In that case, it was contended that a Suit for recovery of loan which was advanced by a plaintiff by a cheque, would be a Suit based on a bill of exchange. Negating the said contention, the Court held that:-

"It is true that a cheque is a bill of exchange, a special type of bill of exchange which is drawn on a bank. However, a Suit upon a cheque (bill of exchange) means a Suit to recover money due on a cheque (bill of exchange) drawn by the defendant, which is dishonoured"

In such a case, the Suit must be for recovery of money on a cheque drawn in favour of or endorsed to the plaintiff. A Suit, however for recovery of a loan which was advanced by the plaintiff by a cheque is not a Suit upon a cheque or a bill of exchange and as such is not maintainable as a Summary Suit. The contention of the plaintiff that the suit is upon a bill of exchange was rejected."

The said principle will be applicable in all four corners to the present facts of the case. Here also it is admitted by the plaintiff that the defendant has not borrowed any amount under the impugned cheque dated 20.2.2006. Even in the reply notice issued by the defendant, the defendant has raised a specific defence that since the original documents were produced by the plaintiff he could not execute the sale deed on the basis of sale agreement entered into between him as a power of attorney holder for the plaintiff with third party and that he is not liable to pay any amount to the plaintiff and that the said cheque was drawn only as a security.

5.The learned trial Judge has also observed in his order that the respondent has specifically alleged that the amount for which the cheque was drawn was only an advance amount towards the sale of the property and that this fact was also not denied by the petitioner. So having come to a conclusion that the amount for which the impugned cheque was drawn was only an advance of sale consideration, it cannot be said that under the impugned cheque Ex.R.2, the defendant had borrowed a sum of Rs.3,27,500/-. Under such circumstance, I am of the view that there are triable issues in