JUDGMENT :

L. S. PIRZADA, J.

1. The present appeal has been preferred by the appellant - original defendant under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 11.09.2008 passed by the learned 10th Additional Civil Judge, Senior Division, Surat, below Exh.52 in Summary Civil Suit No. 15 of 2008. By the said judgment, the learned trial court partly allowed the suit filed by the original plaintiff under Order XXXVII Rule 2(3) of the Code of Civil Procedure, 1908 (for short “CPC”) and directed the defendant to pay a sum of Rs. 53,00,000/- to the plaintiff. The plaintiff was held entitled to recover the said amount along with interest at the rate of 18% per annum from the date of the suit till realization, and costs of Rs. 2,000/-, from the defendants jointly and severally, including from their properties.

2. For the sake of brevity and convenience, the parties herein are referred to in accordance with their original status as in the suit.

3.1 The brief facts leading to the present appeal are that the original plaintiff filed Summary Civil Suit No. 15 of 2008 under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 for recovery of Rs.53,00,000/- along with interest, and also sought a permanent injunction against the original defendants.

3.2 The case of the plaintiff before the learned trial Court is that Defendant Nos. 1 and 2 were well known to the plaintiff and shared a friendly relationship with him. Defendant Nos. 1 and 2 are real brothers, and Defendant No. 3 is their father. Owing to financial crunch, the defendants approached the plaintiff for financial assistance and from time to time beginning on 17.10.2007, borrowed a total sum of Rs.53,00,000/-.

3.3 In acknowledgment of the said debt, Defendant Nos. 1 and 2 executed a promissory note in favour of the plaintiff. As security for repayment, they also deposited the original title documents of their immovable property situated at Katargam, Sub-District Choriyasi, District Surat, bearing Revenue Survey Nos. 458/1 and 549/1/A, Plot No. 50 of Sant Jalaram Society, along with the construction thereon, City Survey Ward No. 1, Sheet No. 152, Property No. 20. The said property is exclusively owned by Defendant Nos.1 and 2.

3.4 Out of the total amount, a sum of Rs.28,85,000/- was paid by the plaintiff through cheques from his own bank accounts as well as from the bank account of his father, and the remaining amount was paid in cash.

3.5 Further, as per the case of the plaintiff, he demanded repayment of the said amount from Defendant Nos. 1 and 2; however, they failed to respond or make any payment. Subsequently, the plaintiff came to know that the defendants had also borrowed money from other persons and were attempting to sell their aforesaid property. Therefore, the plaintiff issued a public notice through his advocate in the “Gujarat Mitra” daily newspaper on 19.02.2008, stating that he had advanced a substantial amount to the defendants and cautioning the public against entering into any transaction with respect to the aforesaid property of Defendant Nos. 1 and 2.

3.6 Thereafter, the plaintiff issued a legal notice through his advocate on 20.02.2008 via Registered A. D. The said notice was duly served upon the defendants. In response, the defendants issued six cheques of different amounts and dates aggregating to Rs.53,00,000/-. The said cheques were signed by Defendant No. 1 in his capacity as proprietor of Khodiar Textiles.

3.7 The plaintiff deposited the said cheques in his bank account. Out of the six cheques, three cheques were presented on 26.02.2008, which were returned unpaid with the endorsement “Refer to drawer – do not present again.” The remaining three cheques were subsequently presented and were also dishonoured on 07.03.2008 with the endorsement “Today’s opening balance is insufficient.”

3.8 Thus, an amount of Rs.53,00,000/- remained due and payable to the plaintiff. Thereafter, the plaintiff issued legal notices dated 04.03.200