1 SJ311.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 311 OF 2008 IN SUMMARY SUIT NO. 786 OF 2006 Hema D. Chhabria. ... Plaintiff. V/s. Sunil Thakkar & Anr. ... Defendants. Mr. P.V. Nichani for the Plaintiff. None for Defendant No.1. Ms. Falguni Thakkar for the Defendant 2. CORAM : R.Y. GANOO, J. DATED : 18th OCTOBER 2010. P.C. :- Affidavit in reply is filed by Defendant No.2. The Plaintiff has filed this Summary Suit against Defendant Nos.1 and 2 for recovery of Rs.60,844/- and interest as set out in the prayer clause. The Summons for Judgment was taken out against both the Defendants. According to the Plaintiff, Defendant No. 1 executed Suit Bill of Exchange dated 23rd March 2003 being on demand Bill of Exchange in favour of the Plaintiff. Defendant No.2 has accepted the said Bill of Exchange in his capacity as the proprietor of M/s. Navjivan Coal Depot. Original Bill of Exchange is produced. The Suit is instituted on 7th February 2006. It is within the period of limitation. 2 SJ311.08.sxw 2. Summons for Judgment was taken out against both the Defendants in the year 2008. It is not served upon Defendant No.1. Affidavit of service as regards Summons for Judgment upon Defendant No.1 is not filed. Hence, Summons for Judgment will have to be dismissed so far as Defendant No.1 is concerned. 3. So far as the Summons for Judgment against Defendant No.2 is concerned, Defendant No.2 has denied the execution of the bill of exchange. It is also the stand of Defendant No.2 that Defendant No.1 had transactions with one Mr. Dhanraj Khatri, who used to arrange for monies to facilitate the needs of Defendant No.1 and blank Bill of Exchanges were executed by Defendant No.1 duly accepted by Defendant No.2. That is how, Defendant No.2 denies the transaction. 4. Learned Counsel for the Plaintiff had proceeded to argue the Summons for Judgment on the basis of denials as regards averments in the affidavit in reply. 5. Looking to the averments in paragraph 5(i) it is clear that Defendant No.2 has admitted execution of Bill of Exchange as an acceptor. Even if the stand of Defendant No.2 accepted that blank Bills of Exchange were executed that will mean that Defendant No.2 had signed instrument authorizing the concerned person to fill in the particulars. No doubt, Defendant No.2 has accepted the responsibility to prove that monies were received by Defendant No.1 from Dhanraj Khatri 3 SJ311.08.sxw and that is how the transaction as regards receipt of loan is accepted. If this be so, Defendant No.2 will have to make out the case as put up in the affidavit in reply. At the same time, on the ground of signature on the Bill of Exchange in terms admitted. Defendant No.2 will have to put to terms as regards deposit of monies to defend the Suit. 6. Hence, following order is passed to dispose of Summons for Judgment :- (i) Summons for Judgment is dismissed for want of prosecution so far as Defendant No.1 is concerned. (ii) Defendant No.2 is granted conditional leave i.e. upon Defendant No.2 depositing in this Court a sum of Rs.50,000/- on or before 30th November 2010. Defendant No.2 is granted leave to defend. (iii) Defendant No.2 to file written statement directly in the Office on or before 9th December 2010. Serve a copy of the same upon Advocate for the Plaintiff within 10 days from filing of the written statement in the Office. (iv) If amount as aforesaid is deposited, Office to invest the same in a nationalized bank initially for a period of two years and continue to renew the same for the like period till further orders. 4 SJ311.08.sxw (v) There shall be no order as to costs. 7. Original Bill of Exchange is returned to the Advocate for the Plaintiff. (R.Y. GANOO, J.)