1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.147 OF 2009 IN SUIT NO.510 OF 2009 Vikas Motwani .. Plaintiff Vs. Prakash Gandhi and Anr. .. Defendants Mr.O.P.Pandey i/b M/s.Pandey and Co. for the plaintiff Mr.R.L.Tolat i/b M/s.Tolat and Co. for defendant nos.1 and 2 CORAM : S.C.Dharmadhikari, J. DATE : September 2, 2010 P.C. : 1. Heard Mr.Pandey appearing on behalf of the plaintiff and Mr.Tolat appearing on behalf of the defendants. 2. The plaintiff gave a friendly loan of Rs.23 lacs by diverse cheques which have been duly encashed according to him by the defendants. 3. In repayment of his debt/loan, the defendants made part payment and after accounting for them, a sum of Rs.21 lacs is due and payable @ 12% p.a.. 2 Demand notice has been sent and the defendants confirm receipt thereof. 4. The suit claim is, therefore, based on the loans which have been advanced by cheques duly encashed and the balance statement is confirmed by the defendants. In reply, the defendants case is that the plaintiff and the defendants were to set up joint venture business of import of stationeries consignments from China. 5. The further defence is that the defendants brought in his share in the joint ’ venture business of import of stationeries and other items from China but thereafter, when the goods arrived, the plaintiff did not take steps to clear them. Infact the parties were introduced by a common broker and the defendants, repeatedly requested the plaintiff through the said broker but the goods have not been lifted, as a result the shipment was lying idle. 6. It is then urged that the plaintiff refused to co-operate and therefore, the defendants cleared the goods at his costs and he has to recover the loss and is liable to repay nothing at this stage. 7. I have heard both counsel on the last occasion and today. I called upon Mr.Pandey to produce original documents. He has produced originals of Exhibits A and B and he has also produced bank statement which shows ‘ ’ ‘ ’ that each of the cheques have been encashed. 3 8. The balance also appears to have been confirmed by the defendants. The plaintiff has accounted for these transactions in his Income Tax returns. The version of the defendants is about some Joint Venture. But at the same time, the counsel appearing for the defendants does not dispute that Rs.2 lacs have been repaid in terms of the friendly loan. There is no reply to the demand notice which has been duly received. All that has been stated is that the defendants have suffered loss on account of the alleged joint venture business. The alleged joint venture business is over and it is the defendants case that they have a counter claim. 9. After having perused these documents carefully and considered the reply affidavits and the stand of the parties, in my view, there is no substance in the objection that the instant suit is not maintainable as summary suit. This is not a suit for recovery of a sum at the foot of an Account but confirmation of the balance by the defendants. Once there is a confirmation on record and prima facie, the defendants do not dispute receipt of the sums advanced by cheque from time to time, then, the least that is expected from the defendants is that they comply with the conditions imposed by the court. From the affidavit, it is clear that the receipt of the amounts from time to time is undisputed but the defendant has his own version which he desires to prove by filing his counter claim. 10. After having considered the totality of the circumstances, interest of justice would be served if conditional leave is granted to defend the suit. 4 Accordingly, the following order. 11. On the defendants depositing in this court a sum of Rs.12 lacs within a period of 8 weeks from today, there will be leave to defend and the suit will have to be transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. In default, the consequences in law shall follow. Summons for Judgment is allowed accordingly. No costs. ( S.C.Dharmadhikari, J. )