1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 255 OF 2008 IN SUMMARY SUIT NO. 3485 OF 2007 M/s Expo Freight Pvt.. Ltd. . .. Plaintiff. Vs. M/s Emarsso International & Anr. ...Defendants. --- Mr. Rajinder Kumar a/w Mr. D.P. Singh, for the Plaintiff. Ms. Vandana Jaisingh, for the Defendant nos.1 and 2. ---- CORAM : S.J. VAZIFDAR, J. DATED : 24TH AUGUST, 2009. P.C. 1. The Suit is filed to recover a sum of Rs.11,87,657/- together with interest at 24% p.a. on principal sum of Rs.7,71,206/-. 2. The suit is based, inter alia, upon the dishonoured cheques. The cheques were issued in consideration of services rendered by the Plaintiff pertaining to export of the defendants goods. 3. That the said cheques were issued is not denied. That the services were rendered by the Plaintiff to the Defendants is also not denied. The only defence is that the export promotion certificate had not been furnished by the Plaintiff to the Defendants, as a result 2 whereof the Defendants suffered loss. 4. The Defendants have fairly conceded that even if this defence is well founded sum of Rs.2,16,206/- is due and payable by the Defendants to the Plaintiff. This was also stated in the Defendants’ letter dated 15.12.2006 [Exh.’K’ to the plaint]. 5. This leave for consideration the balance principal sum of Rs.2,55,000/-. 6. The learned counsel appearing on behalf of the Defendants relied upon the bank guarantee issued by the Saraswat Co-Ooperative Bank Ltd. in favour of Dy.Commissioner of Customs Authority at the request of the Defendants. The said guarantee was to ensure the fulfillment of certain obligations of the Defendants in respect of the suit transactions. The guarantee was expressly limited to a sum not exceeding Rs.2,55,000/-. Under clause 2, the guarantee was valid up to 20.05.2005. Clause-3 of the guarantee stipulated that the bank would be liable thereunder only if the Customs Authority served upon the bank a written claim on or before 20.05.2005 invoking the guarantee. 7. It is not even contended by the Defendants that bank guarantee had been invoked by the Customs Authority or that the bank had made payment to the Customs Authority. There is thus no 3 question of the Defendants being liable in turn to pay/reimburse any amount to the bank. 8. In the circumstances, the Summons for Judgment is disposed of by following order:- The suit is decreed in the sum of Rs.2,16,206/- together with interest thereon at 18% p.a. till the filing of the suit and thereafter at 10% p.a till payment and/or realisation. Leave to defend is granted to the Defendants conditional upon the Defendants depositing in this Court a sum of Rs.4,00,000/- within twelve weeks from today. In the event the Defendants deposit the aforesaid amount, the suit to stand transferred to the list of Commercial Causes. The Defendants to file their written statement within thirty days. Discovery and Inspection within four weeks thereafter. In the event the Defendants fail to deposit the aforesaid amount, liberty to the Plaintiffs to apply for further orders. On the said deposit being made, the Prothonotary and Senior Master to invest the same in any nationalized bank initially for a period of two years and shall renew the same thereafter for a period of one year from time to time. 9. Summons for Judgment stands disposed of accordingly. 4