*1* sj.317.09.ss.1395.09.902.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.317 OF 2009 IN SUMMARY SUIT NO.1395 OF 2009 Kaajal A. Manghirmalani. ..Plaintiff -versus- Alphas (India) Pvt.Ltd. and others. ..Defendants ............ Mr.P.V.Nichani i/by P.V.Nichani & Company, for the Plaintiff. Mr.Tushar Dahibawkar i/by Dahibawkar & Company, for the Defendants. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 30th November, 2011. P.C.: 1 This Summons for Judgment was argued yesterday and after conclusion of the argument, it was reserved for orders today. 2 The Plaintiff proceeds on the basis that the Defendant No.3 represented to her that he is a Director of the Defendant No.1 and partner of the Defendant No.2. He further represented that the Defendant No.1 was in need of financial accommodation for business purpose and requested the Plaintiff to accommodate the Defendant No.1. Accordingly, the Plaintiff agreed to the request and gave finance to the Defendant No.1 from time to time. The Defendant Nos.4 to 7 are partners of the Defendant No.2. 3 It is stated that on 05.01.2009, the Defendant No.1 through the Defendant No.3 as Director of the Defendant No.1 for valuable consideration drew two Bills of Exchange for Rs.5 lacs each on the Defendant No.2 directing the Defendant No.2 to pay to the Plaintiff *2* sj.317.09.ss.1395.09.902.sxw aggregate sum of Rs.10 lacs on demand. The notice of dishonour in respect of each of the Demand Bills of Exchange was waived by the Defendant No.1 through the Defendant No.3 by signature made on each of the Demand Bills of Exchange dated 05.01.2009. The Demand Bills of Exchange were presented for acceptance to the Defendant No.2 through the Defendant No.3 on the same day which were duly accepted by the Defendant No.2 through the Defendant No.3. These Demand Bills of Exchange were then delivered to the Plaintiff by the Defendant No.3 at the Plaintiff's residence. 4 Upon these bills being presented for payment to the Defendant No.2 through the Defendant No.3 on 21.01.2009, they were dishonoured for non payment. The notice of dishonour was immediately given to the Defendant Nos.1 to 3. Although it was waived, neither the amount has been paid under the subject bills of exchange by the signatories/ acceptors nor have the Defendants complied with the requisitions and demands made in the Plaintiff's Advocate letter. 5 There has been correspondence between the parties and subsequently, the suit is filed. 6 On appearance of the Defendants being entered through the Advocates, the Summons for Judgment was taken out and duly served. The Defendants have sought leave to defend and have pointed out that the alleged bills of exchange are forged and the suit is not maintainable. It is stated that the Plaintiff in connivance with her husband (Arvind Manghirmalani) has played fraud on the Defendants by misusing the documents obtained by her husband. The alleged bills of exchange were executed on the stamp paper issued in the name of third party and therefore, they are invalid and inadmissible documents. There were criminal complaints filed against the Plaintiff and her husband for breach *3* sj.317.09.ss.1395.09.902.sxw of trust. The complaints are under investigation. It is stated that the Defendant No.3 is neither a Director of the Defendant No.1 nor a partner of the Defendant No.2. The Plaintiff has worked as an Advocate for the Defendant No.2 for various years and her husband (Arvind Manghirmalani) has also worked for this Defendant as an Advocate. The said Arvind Manghirmalani is also a partner of the Defendant No.2 in property redevelopment. Thus, it is stated that the suit claim is false and bogus. There is bonafide and valid defence. It is stated that the Defendants are not liable to pay any sums that are claimed in the suit. 7 In the affidavit in rejoinder, what the Plaintiff has stated is that the suit bills of exchange have been executed for valuable consideration and there is presumption which can be raised against the Defendants in terms of the relevant statutory provisions. It is clear that there is collusion between the Defendants and they are depriving the Plaintiff of her legitimate claim. It is stated that none of the Defendants have disputed the receipt of consideration for the bills of exchange. The statement of the Bank is annexed in this behalf. It is stated that, therefore, there is no question of any fraud and all these are allegations made with a view to deny the Plaintiff's legitimate claim. It is averred in the affidavit in rejoinder that the Defendant No.3, who is partner of the Defendant No.2, has duly accepted the bills of exchange. The Plaintiff has relied upon the partnership deed dated 01.09.2006 which shows that the Defendant Nos.3 to 7 are partners of the Defendant No.2. It is stated that the Plaintiff never worked as an Advocate for the Defendant No.2 and her knowledge of the names of partners of the Defendant No.2 arises out of the documents furnished by the Defendants, namely, the photocopy of the Partnership Deed. The Defendant No.3 is father of the Defendant No.7 and brother-in- law of the Defendant No.5. The Defendant Nos.4 and 7, who are sons of *4* sj.317.09.ss.1395.09.902.sxw the Defendant No.3, are partners with different persons in various projects carried in the name and style of M/s Aditya Enterprises. Therefore, it is not as if this is a case of any strangers being involved or that the parties not knowing the business and particularly of the development of the properties and the financial transactions that have been roped in during the course of business. 8 It is also clear, according to the Plaintiff, that none of the aspects that are stated in the affidavit in reply seeking leave to defend, can be said to be raising triable issues and therefore, this Court should proceed to discard the same and reject the defence and decree the suit. 9 During the course of the argument, I called upon Mr.Nichani, learned counsel appearing for the Plaintiff, to produce the original bills and upon same being produced for my perusal, it is apparent that the stamp papers on which they have been executed bear the date, namely, 17.10.2008, the name of purchaser is Mr.Arvind Manghirmalani and the name of Plaintiff also appears therein. Mr.Nichani does not dispute that the Plaintiff is an Advocate by profession. On query from the Court as to how the Plaintiff and her husband, who are both stated to be Advocates, have engaged themselves in such transactions and how they are associated in such business, despite being enrolled as Advocates under the Advocates Act, 1961, Mr.Nichani has no answer. From perusal of the documents, it is evident that the criminal prosecution is pending. It is stated by Mr.Nichani that even the Plaintiff has lodged the criminal prosecution against the Defendants. This is a clear case where the amount of stamp papers on which the bills have been executed/raised, appears to have been paid by the husband. It is not demonstrated as to how the Plaintiff came to be associated with the activities of the Defendants save and except for the professional services rendered. Thus, there is prima *5* sj.317.09.ss.1395.09.902.sxw facie substance in the contentions of the Defendants who are contesting the claim of the Plaintiff, that it is the husband of Plaintiff who has put up the Plaintiff and filed the instant suit. From perusal of the affidavit in reply and rejoinder, it is evident that if the Plaintiff came before this Court with a case that there are several entities with the name M/s Aditya Enterprises and precisely with which entity the Plaintiff has dealt with and the Defendants are associated as partners, is not clear, then, triable issues arise for consideration in the suit. Further, the Defendant No.3 has pointed out by filing an additional affidavit that he was never a director of the Defendant No.1, then, all the more the version of the Plaintiff cannot be said to be acceptable at this stage. It is not the case where the suit is instituted for recovery of sums under a Negotiable Instrument which can be decreed on the basis of the presumptions emerging from the statutory provisions in that behalf. In such circumstances and when the execution being seriously disputed, there is no alternative but to grant unconditional leave to defend the suit. 10 In such circumstances, the Summons for Judgment is dismissed, with no order as to costs. Unconditional leave to defend the suit is granted. The suit is transferred to the list of commercial causes. Written Statement be filed within twelve weeks from today. Discovery and inspection be completed within this period. 11 The original bills of exchange along with the Bank certificate which are being placed on record shall be kept in safe custody by the Prothonotary and Senior Master of this Court. (S.C. Dharmadhikari, J)