SJ.341/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 342 OF 2009 IN SUMMARY SUIT NO. 1347 OF 2009 Ashraf Husein Merchant …. Plaintiff. Vs. Supreme Sukhadam & Associatds & Ors. ….Defendants. --- Mr. Sandip Parekh i/b M/s Bilawala & Co., for the Plaintiff. Mr. Rishabh Shah i/b Chitnis Vaithy & Co., for Defendants. ---- CORAM: S.C. DHARMADHIKARI, J. DATE : 7 TH SEPTEMBER, 2010. P.C.: 1] Heard Shri Parikh, learned Counsel appearing on behalf of the plaintiff and Shri Shah, learned Counsel appearing on behalf of the defendants. 2] The plaintiff in this suit claims a decree in the sum of Rs. 7,67,041/- on the basis of particulars of claim annexure ‘F’ to the plaint. The principal sum is stated to be Rs.5,00,000/- and the balance is the 1 SJ.341/2009 interest @18% p.a. Further prayer in the suit is for a decree in the sum of Rs.3,06,817/- as per the particulars of claim annexure ‘G’. That is comprising of principal sum of Rs.2,00,000/- and the balance is the interest. 3] It is stated that the plaintiff who is a citizen of India and equally the first defendant. They were introduced a Chartered Accountant known to both. The first defendant is a partnership firm of which defendant nos.2 and 3 are the partners. They are sued in their capacity as drawers and acceptor of the Suit bills of exchange. The bill discounting facility was given at the instance of and intervention of the said Chartered Accountant and it is stated in para 2 of the plaint that defendant no.1was to pay to plaintiff the bill discounting charges during the course of his business. 4] In the ordinary course of business the bill discounting charges remained in arrears and in consideration thereof the bills of exchange annexure ‘A’ are executed. That was executed by defendant no. 4. All this because defendant nos.1 to 3 admitted that they were not in a position to pay the arrears of bill discounting charges to the plaintiff. However, the bill of exchange at annexure ‘B’ is executed for the bill 2 SJ.341/2009 discounting charges. It is stated on the reverse of these bills that the first defendant confirms that the amounts covered thereby represents bill discounting charges. It is urged that the bill discounting charges up to 31.3.2006 stand confirmed and thereafter these bills were executed and a letter dated 25.12.2005 is stated to have been addressed recording the dealings. 5] Since there was default committed in making payments under the bills which are part of the Companion Suit, the plaintiff by two letters dated 5.2.2008 and 27.2.2008 called upon the defendants to make payment. 6] The plaintiff naturally did not confirm the contents of these letters and reiterated that there was no meeting or agreement to scale down the liability or reduce it and in fact despite admission, the defendants have failed to make payment. The reliance is placed on annexure ‘E’ and also to urge that confirmation is of the sum of Rs. 17,50,000/-, and therefore, there is no question of scaling down and in any event that amount have never been offered leave alone paid. 7] It is in such circumstances, the Summons for Judgment has been filed. 3 SJ.341/2009 8] In the affidavit in reply, the defendants have contended that in the year 1995 the plaintiff approached the defendants and showed interest in investing some amounts in the business of defendants. In paras 8,9 and 10 the of the affidavit in reply filed by Nilin Joshi, Director of the Partner Company of Defendant No.1 and 4, this is what is urged: “8. I say that even to date these Defendants are ready and willing to pay the interest calculated @18% p.a. on the original bill of exchange for the value of Rs.7,00,000/- (Rupees Seven Lacs only) after giving credit to the amount of Rs.1,60,000/- paid by the Defendants till date. 9. I say and submit that however the Plaintiffs have filed two separate suits whereby the Plaintiffs by virtue of the present suit have filed a suit for recovery 18% simple interest calculated from 1st April 2006 to 18th March, 2009 on the amount of Rs.7,00,000/-. The Plaintiffs have mischievously filed a separate suit being Suit No.1406 of 2009 against these very Defendants on two other bills of exchnge for the value of Rs.13,33,125/- and Rs.13,88,390/- which bills were merely issued as comfort by the Defendants, for repayment of the money advanced in lieu of the settlement of the dues which were settled later by and between Defendant and whereby the Plaintiff was asked to return the Bill of Exchange 4 SJ.341/2009 against the earlier bills. The Plainiffs have filed 2 separate suits for recovery an amount of Rs.44,81,844/- (Rupees Forty Four Lacs Eighty One Thusand Eight Hundred Forty Four only) in lieu of new Bill of Exchange to be replaced as referred by letter dated 11.2.2006 Exhibit “E”. As submitted hereinabove that these Defendants are ready and willing to pay simple interest calculated @ 18% p.a. on the original bills of exchange after giving the credit to the amount already paid by these Defendants. It was specifically agreed at the time of issuing the bills of exchange for the value of Rs.13,33,125/- and Rs.13,88,390/- that the same were only by way of comfort. In any case, it is necessary for the consideration of this Hon’ble Court that all along the 2 sons of the Plaintiffs i.e. Mr. Akhil and Mr. Aslam were interacting with these Defendants and it is a matter of fact tht the Plantiffs himself had at no point of time ever interacted with these Defendants. 10. I say and submit that in fact the 2 sons of the Plaintiffs from time to time had several meetings with these Defendants and since January, 2008 till about April, 2008 wherein it was specifically agreed that the claims of the Plaintiffs should be amicably settled and in fact Mr.Akhil and Mr. Aslam, the 2 sons of the Plaintiffs in terms had agreed to accept an amount of Rs.17,50,000/- 5 SJ.341/2009 in full and final settlement of the Plaintiffs claim under both the suits. I say that infact the Defendants have repaid an amount of Rs.9,60,000/- out of the principal amount of Rs.15,00,000/- to the Plaintiffs in good faith on the solemn assurance that the earlier bills of exchange of Rs.13,33,125/- and Rs.13,88,390/- be surrendered on issue of bill of exchange for the value of Rs.17,50,000/- as per letter at Exhibit “E”. The Plaintiffs have in breach of faith backed out of the agreed terms and have refused to return the earlier bills of exchange and now have filed two separate suits on the basis of one single transaction.” 9] In the Companion matter, between same parties, and in identical cause of action, common agreements were Cauvassed. I need not reproduce them all over again. Barring the difference in the amounts, other issues are similiar. Even the defence is more or less common. For the reasons assigned by me in the order passed in Summons for Judgment No.341 of 2009 in Summary Suit No.1406 of 2009, even this Summons for Judgment is disposed off by the following Order:- (i) Defendants to deposit principal amount under each bills of exchange as set out at Exhibits ‘F’ and ‘G’ to the plaint within a period of 12 weeks from today. 6 SJ.341/2009 (ii) If these principal sums are deposited, the defendants would be entitled to leave to defend and thereafter the suit stands transferred to the list of Commercial Causes with usual Directions to file Written Statement, Discovery and Inspection. (iii) In default, all consequences in law including a decree shall follow. 10] Liberty to apply for withdrawal after the deposit is made. [S.C. DHARMADHIKARI, J.] 7