MOTILAL PRABHULALJI VYAS Vs. JAYANTILAL TULSIDAS THANAWALA

JUDGEMENT

(1.) This Appeal is preferred by the original defendant against the Judgment and Decree passed by the learned Judge, City Civil Court, Mumbai, in Summary Suit No.944 of 1992 in favour of the plaintiff/respondent.

(2.) To state in brief, it is case of the plaintiff that on 25.1.1988, he had advanced an amount of Rs.37,000/- to the defendant, had had agreed to repay the amount with interest at the rate of 21% per annum. Accordingly, the defendant he had executed a promissory note in favour of the plaintiff. However, the defendant failed to make repayment of the amount, but he paid an amount of Rs.5,000/- on 15.5.1989 and thereafter he issued two cheques of Rs.3,000/- and Rs.6,000/- on 3.3.1990 and 21.5.1990 respectively. Both these cheques were dishonoured and in respect of the same the plaintiff has taken action against him under Section 138 of the Negotiable Instruments Act. After adjustment of the said amount of Rs.14,000/-, the defendant was liable to pay balance amount of Rs.23,000/-. According to the plaintiff, the interest on the amount till the date of filing the suit would be Rs.18,000/-. Therefore, he claimed total amount of Rs.41,000/-. Summary Suit was filed on 19.12.1991 for recovery of the amount.

(3.) The defendant was granted leave to defend the suit. According to him, he had taken loan of Rs.20,000/- on 18.5.1985 from the plaintiff and at that time he had executed a promissory note. Besides obtaining his signature on the promissory note, the plaintiff had also obtained signatures of the defendant on the revenue stamps affixed on blank papers and he has misused the said signature for the purpose of creating the promissory note dated 25.1.1988 against him. He contends that he had repaid the amount of Rs.15,000/- on 21.7.1986 and thereafter he had paid Rs.3,000/- on 8.3.1990 and Rs.6,000/- on 15.5.1989. According to him, towards the balance amount and interest, he had issued a cheque of Rs.6,000/- on 21.5.1990 and that cheque was dishonoured. He denied that he had taken loan of Rs.37,000/- from the plaintiff on 25.1.1988 and that he had executed the fresh promissory note in respect of that loan. He further contended that the suit is barred by limitation. According to him, the plaintiff is a money lender carrying on business of money lending without licence and therefore the suit is liable to be dismissed.