mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 254 OF 2008 IN SUMMARY SUIT NO. 1574 OF 2008 Ashok Assandas Bahirwani .. Plaintiff versus Prem Bahirwani & ors. .. Defendants ... Mr.V.R. Tripathi for the plaintiff. Mr.Nitin Vhatkar with Mr.G.S. Hiranandani for the defendants. CORAM : D.G. KARNIK, J DATED : 1st April 2009 P.C.: 1. Heard learned counsel for the parties. 2. This Summons for Judgement is taken out by the plaintiff in a suit for recovery of Rs.11,86,172.16. The defendants have contested the Summons for Judgement and have prayed for unconditional leave to defend. 3. The case of the plaintiff is that the plaintiff and the defendant no.1 were carrying on business in partnership. The plaintiff retired from the partnership and defendant no.2 was inducted as a new partner. Both these things happened simultaneously and the written deed of retirement of the plaintiff and the reconstitution of the firm was executed between the parties on 1st November 2004. Under the said deed of retirement the defendant no.1 who was the original partner and the defendant no.2 who was incoming partner agreed to pay to the plaintiff the amount that was due to the plaintiff at the foot of capital account in the firm as on 1st October 2004. The money was to be paid on or before 31st March 2005. Accounts were prepared and a sum of Rs.11,86,172.16 was due to the plaintiff at the foot of the capital account of the plaintiff as on 31st October 2004. Plaintiff has therefore filed the suit for recovery. 4. The defendants by filing an affidavit in reply has admitted that they were to repay to the plaintiff the amount due as on 31st October 2004. They had however contended that on 1st February 2005, the plaintiff, by mispresenting himself as authorised members on the partnership firm, withdrew gold bars of 2 kgs from State Bank of India in the name of the firm. The plaintiff misappropriated the gold bars for himself and did not deliver the gold bars to the defendants. Value of the gold bars as on the date of the withdrawal was more than Rs.13 lakhs and therefore, no money is due and payable by the defendants to the plaintiff. 5. In the affidavit in rejoinder by the plaintiff, he has admitted of having withdrawn 2 kg of gold bars from the State Bank of India. He has however contended that those were collected for and on behalf of the partnership firm and as its representative as per the instructions of the defendants. He has further stated that the gold bars were given to the defendants. There is no proof on record that the plaintiff delivered the gold bars to the defendants. 6. Whether the plaintiffs did return the goods to the defendant or not is a disputed question of fact which requires trial. The plaintiff has admitted having received the gold bars but has claimed that they were delivered to the defendants. The defendants have denied the receipt. In the absence of any written proof of delivery, the defendants have made out a defence which requires trial and their defence raises a triable issue. In view of this, defendants are granted unconditional leave to defend the suit. The defendants shall file written statement within ten weeks. On the defendants filing of the written statement, the suit shall stand transferred to the list of commercial causes. (D.G. KARNIK, J)