1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 218 OF 2009 IN SUMMARY SUIT NO. 2697 OF 2008 Mr. Ramrekha Shukla .. Plaintiff Vs. Radha Krishnan .. Defendant Mr. Rakesh Kumar i/b Legal Vision for the Plaintiff. Mr. C. S. Joshi for the Defendant. CORAM : R. V. MORE, J. DATE : 8th January, 2010. P.C. 1. Heard learned Counsel for the respective parties. 2. The above suit is filed under the provisions of Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 for recovery of an amount of Rs.4,01,791/- together with further interest @ 18% on principal sum of Rs.2,62,589/-. 3. The case of the plaintiff in short is that, the defendant has placed an order with the plaintiff for supply of S. S. Coils, S. S. Sheet and S. S. Wire. As per this order, the plaintiff has supplied 2 the said materials to the defendant under the invoices Nos.40, 41, 42, 52, 61, 72 dated 12.08.2005, 22.08.2005, 22.08.2005, 05.10.2005, 29.10.2005 and 19.12.2005 respectively for a total amount of Rs. 2,62,589/-. It is further case of the plaintiff that the defendant after persistent demands issued three cheques to the plaintiff, each for an amount of Rs.50,000/- i.e. Rs. 1,50,000/- in aggregate. The cheques, however, were dishonoured with endorsement “insufficient funds”. The plaintiff thereafter filed criminal complaint under Section 138 of the Negotiable Instruments Act and same is pending. 4. By the notice dated 28th April 2008 the plaintiff demanded Rs. 4,01,791/- inclusive of interest @ 18% p.a. calculated on the principal amount. This notice was replied and for the first time the defendant claimed that quality of the material was inferior. In above facts, the plaintiff was constrained to file the present suit and thereafter Summons for judgment is taken out. 5. The defendant contested the Summons for judgment by filing reply. The defendant does not dispute the receipt of material mentioned above from the plaintiff. His defence is that 3 the dispute between the plaintiff and the defendant was already settled and the plaintiff agreed to accept Rs.1,50,000/- as in full and final settlement of his claim. Defendant has shown his willingness to deposit an amount of Rs.1,50,000/- in this Court. To substantiate his defence, defendant relies upon the writing dated 05.12.2007 annexed to his reply. 6. Learned Counsel for the plaintiff submitted that the story of the settlement of the claim is after-thought and the aforesaid document dated 05.12.2007 is procured by forgery. He denied the signature of the plaintiff on the said document. 7. Having heard learned Counsel for the respective parties and having gone through the pleadings along with the documents annexed thereto, I am of the opinion that the unconditional leave to defend cannot be granted, and if the leave is to be granted to the defendant to defend the suit, the same can only be granted subject to deposit of substantial money towards claim of the plaintiff. The defendant has not denied the receipt of the goods from the plaintiff. The goods were supplied to him in the year 2005. During the period from 2005 to 2008 the defendant did not 4 make any complaint about the quality of the material. However, for the first time after receipt of notice of demand from the plaintiff, a complaint is made about inferior quality material supplied by the plaintiff. I do not find any substance in this defence of the defendant. 8. So far as the alleged settlement is concerned, the defendant claimed that the matter is settled for an amount of Rs. 1,50,000/-, however the said claim is disputed by the plaintiff. In this regard the defendant relied upon the document dated 05.12.2007 annexed to his reply. Perusal of the said document discloses that the same is a xerox copy of the document. Learned Counsel for the plaintiff called upon the defendant to produce the original of the same. However, it is the contention of Mr. Joshi learned Counsel for the defendant that the original is with the plaintiff. In my view, normally in above facts the original ought to be with the defendant. In any case the evidentiary value of the said document will be considered at the time of trial. The fact remains that even three cheques given by the defendant to the plaintiff for an amount of Rs.1,50,000/- were dishonoured for want of sufficient funds. I find the defence of the defendant is not bonafide and same 5 is sham and bogus. Taking into consideration totality of the circumstances, I dispose of the Summons for judgment by passing the following order :- :: O R D E R :: 1. The defendant is granted leave to defend the suit subject to deposit of an amount of Rs.2,62,589/- in this Court. The defendant shall deposit an amount of Rs. 1,50,000/- on or before 15 th February, 2010 . The balance amount shall be deposited on or before 30 th March, 2010. 2. If the defendant deposits the aforesaid amounts as stipulated above, the suit shall be transferred to the list of commercial causes, and the defendant is permitted to file the written statement within the period of six weeks from 30th March, 2010. 3. The plaintiff is entitled to withdraw unconditionally an amount of Rs.1,50,000/- out of the total amount deposited by the defendant. Balance of the amount shall be invested in Fixed Deposit initially for the period of three years and thereafter shall be renewed 6 from time to time till final disposal of the suit. 4. In the event, the defendant fails to deposit the amount within the stipulated time, the suit stands decreed with costs. ( R. V. MORE, J. )