1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 274 OF 2008 IN SUMMARY SUIT NO. 1638 OF 2008 Auro Gold Jewellery Pvt.Ltd. .... Plaintiffs. Vs. Manohar Laxman Vaidya & Sons Jewellers & Ors. .... defendants. Mr. M.D.Mali i/by M/s. M.D.Mali & Co. for the plaintiffs. Mr. A.G.Damle for the defendants. CORAM : A.A. SAYED, J. DATE : JULY 6, 2009. P.C. 1. The above Summons for Judgment has been taken out by the plaintiffs to enter a judgment in their favour against the defendants in a sum of Rs. 28,84,664/- alongwith interest @ 24 % per annum on the said amount from the date of filing of the suit till payment and/or realization. 2. The Suit is based on Invoices in respect of supply of gold ornaments. It is the case of the plaintiff that the goods were supplied by five Invoices, amounting to Rs. 31,84,664/-. As and by way of part payment, four cheques were issued amounting to Rs. 7,81,691/-. However, the cheques were returned dishonoured. The cheques, which were returned are also annexed to 2 the plaint. Thereafter, the defendants made part payment in a sum of Rs. 5 lac by Pay Order. The balance amount of Rs. 26,83,664/- covering the Invoices have remained unpaid. On the Invoices there is an endorsement - “received above quantity in good condition” and the Invoices bear the signature of Defendant No. 2. There is some dispute insofar as whether the defendant No.3 who is the wife of Defendant No. 2 is the partner of defendant No. 1 Firm or not inasmuch as at some places it is impliedly admitted that she is a partner. The defendant No.2, however, has relied upon and annexed a copy of partnership deed dated 7th May, 1997 of the defendant No.1-Firm to show that the defendant No.3 is not a partner. 3. In his affidavit in reply, the defendant No.2 has stated that his brother-in-law Mr. Devendra Patankar i.e. the brother of defendant No. 3, had cheated him and he is also liable to pay the said sum of Rs. 26,84,664/-. In so far as the signatures on the Invoices are concerned, the case of the defendant No. 2 in his reply is that same were obtained forcibly at the instance of the plaintiffs by one Mr. Chetan and Mr. Vikram on 26.9.2005 and that complaint to that effect has been filed in the Court of Metropolitan Magistrate, No. 26, bearing Case NO. 315 of 2007. It is further stated that he has never signed the cheques on which the suit claim is based. He has also relied upon the complaint, which has been filed against Shri Devendra 3 Patankar. It is further stated that the plaintiff was compelled even to pay said sum of Rs. 5 lacs. 4. The learned Counsel for the plaintiff has pointed out letter dated 27.6.2007 ( Exhibit- D to the plaint) and submitted that there is no mention in the said letter by the Defendant No. 2 that the signatures were forcibly obtained and that it was only an afterthought. According to the plaintiff, the defendants have cheated several people in the market and complaints have been filed against the defendant No. 2 & 3 of cheating and for breach of trust and anticipatory bail application s have also been filed by the defendant No. 2 & 3. 5. Learned Counsel for the plaintiff has relied upon three Judgments (1) Jatin Koticha Vs. VFC Industries Pvt. Ltd. reported in 2008(2) Bom.C.R. 15; (2) Divyesh K. Kothari Vs. Aatam Gems and Ors., reported in 2006(2) Mh.L.J., 744 (3) M/s J.K.Enterprise Vs. Prithviraj Ratanchand Mehta and anr., reported in Law of Summary Suits and Summary Trials, Pt. V pg. 388. 6. On the other hand, the learned Counsel for the defendants has relied upon the Full Bench Judgment in case of Jyotsna K. Valia Vs. 4 T.S.Parekh & Co., reported in 2007(3) Bom.C.R. 772 (2). The learned Counsel for the defendants has also submitted that the defendant No. 3 is not a partner and this is therefore a case of misjoinder of parties. 7. I have considered the rival contentions of the parties and perused the material on record. Insofar as the Invoices are concerned, the signature of the defendant No. 2 on the Invoices are not disputed. The defendant No. 2 has signed the said Invoices as partner of defendant No. 1- Firm and it is also endorsed in handwriting thereon “received above quantity in good condition”. The only case of the defendant No. 2 is that his signatures were taken forcibly. For that purpose he has relied upon a complaint, which has been filed some time in the year 2007, whereas the incident of having taken the signatures forcibly is alleged to have taken place sometime on 26.9.2005. Thus the complaint is filed after a period of almost two years and no credence can be attached to the complaint. Moreover, even in the letter dated 27.6.2007, the aspect about the signatures having been taken forcibly has not been mentioned which belies the case of the defendant. Insofar as the plea that his brother-in-law Mr. Devendra Patankar has cheated him, the same is without substance, inasmuch as the signatures on the Invoices have been admitted and cheques in part payment have also been issued by the defendant No. 2. 5 8. In the circumstances, in my view the defendants have not made out a substantial defence in the suit. At the same time in the facts of the case, I am not inclined to shut out the defendants from contesting the suit completely. Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice. :- O R D E R (i) The defendants are granted leave to defend the suit upon the condition that the defendant No. 1 & 2 deposit 50% of the principal amount of Rs. 28,84,664/- in this court within eight weeks from the date of this order. (ii) In the event, the defendants deposit the amount, the suit would stand transferred to the list of the suits of commercial causes. Written statement to be filed within 30 days of the deposit being made. Affidavit of Documents within 8 weeks thereafter. Discovery and Inspection be completed within eight weeks thereafter. (iii) On deposit being made as aforesaid, the Prothonotary and Senior Master to invest the same in any Nationalized Bank. 6 (iv) In the event, the defendants fail to deposit the aforesaid amount, liberty to the plaintiffs to apply for further orders. 9. Summons for Judgment to stand disposed of accordingly. [A.A.Sayed,J.]