PARNIMA JAITLY Vs. RAVI BANSI JAISINGH

JUDGEMENT

(1.) THE short question that arises for consideration in this suit is whether the suit is maintainable as a summary suit?

(2.) THE facts as pleaded in the plaint may be briefly stated thus: the plaintiff knew the defendant for 10 years. At the request of the defendant, the plaintiff advanced to the defendant a friendly loan of 1,00,000 /- on 7th December, 1995 for which the defendant agreed to pay interest at the rate of 21% p. a. The loan was repayable by 31st December, 2000. The defendant paid interest to the plaintiff at the agreed rate up to 30th September, 1997 but thereafter failed to pay further interest and also failed to repay the principal sum of Rs. 1,00,000/ -. Plaintiff therefore filed the suit for recovery of the sum of Rs. 1,00,000/- with interest under the provisions of Order xxxvii of the Code of Civil Procedure.

(3.) ADMITTEDLY, there is no written agreement between the parties regarding the loan nor has the defendant executed a bill of exchange, a hundi or a promissory note. Learned Counsel for the plaintiff however, submits that the loan was advanced to the defendant by the plaintiff by a cheque (which is a bill of exchange) drawn on Hongkong and Shanghai Banking Corporation and hence the suit is based on a bill of exchange and is maintainable as a summary suit. The learned Counsel relies upon a certificate issued by Hongkong and Shanghai Banking Corporation on 16th July, 2003 certifying that cheque no. 649794 dated 7th February, 1995 for Rs. 1,00,000/- favouring 'coastal energy' (concern of which the defendant is a proprietor) was encashed and debited to the plaintiffs account on 8th February, 1995.