1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 274 OF 2009 IN SUMMARY SUIT NO. 1438 OF 2009 Hiren Narendra Patel …Plaintiff. Vs. Mohammed Azam Aslam Butt & Ors. …Defendants.. ----- Mr.K.J. Hakani, counsel for the Plaintiff. Mr. Punit B. Anand, counsel for the Defendant Nos.1,2 and 4 to 7. ---- CORAM: S.C. DHARMADHIKARI, J. DATE: 20TH NOVEMBER 2009. P.C.: 1. Heard Shri Hakani, learned counsel appearing on behalf of the plaintiff, and Shri Anand, learned counsel appearing on behalf of defendant nos.1,2 and 4 to 7. Defendant No.3 has expired. 2. I have perused the affidavit-in-reply and the rejoinder. 3. At the outset, it is fairly conceded that there will have to unconditional leave to defend the suit as far as defendant nos.1,2, and 4 to 6. 4. The principle relief in this Summons for Judgment is sought against Defendant No.7. It is urged by Shri Hakani for the plaintiff that defendnat No.7 had forwarded cheques duly signed by him, drawn in favour of the plaintiff in the 2 sum of Rs.50,00,000/-. These cheques have been signed in the month of May 2006. They were presented for payment, but the bank has dishonoured them by the memos which have been issued on 19.5.2006. The instant suit is filed on 15.8.2009, therefore, the suit claim is within limitation. 5. Shri Hakani for the plaintiff submits that since the cheques having been signed by defendant no.7, he cannot be heard to say that the responsibility to have them cleared and honoured is not that of defendant no.7. He cannot raise any issue as between defendants to deny the legitimate claim of the plaintiff. It may be that the transaction between the plaintiff and defendant nos.1 to 6 could not go through, but, that by itself is no ground to hold that this suit is not maintainable as summary suit against defendant no.7. The suit is filed on the basis of the dishonoured cheques and therefore the relief claimed falls within the ambitand scope of order 37 of the Code of Civil Procedure. Inviting my attention to the suit notice and reply thereto, Shri Hakani submits that the amount under the cheques is admitted claim. The signatures also have been admitted so also Dishonour of cheques. Thus, this court candecree the claim so far as defendant no.7 is concerned. 6. Mr. Anand, learned counsel for the defendants firstly contended that the suit claim cannot be tried by this court. The MOU between the plaintiff and defendant nos.1 to 6 contains the arbitration clause. He therefore submits that matter therefore must go to the arbitration. Further, defendant no.7 is not 3 independently liable in as much as he had acted as power of attorney holder of defendant nos.1 to 6, therefore, suit cannot be instituted on the basis that defendant no.7 is personally liable to pay any sums. 7. It may be true that the cheques have been signed by defendant no.7 but the entire situation has been explained in affidavit-in-reply and this is not a case where the court should impose any condition on defendant no.7 but grant him unconditional leave to defend the claim in the suit. 8. Having perused the plaint, and annexures thereto, I am satisfied that defendant no.7 cannot say today that liability under five cheques which have been issued by him is not his personal liability. The notice preceding the suit clearly stated that the cheques have been signed by defendant no.7, the cheques were drawn in favour of the plaintiffs. The cheques were sought to be deposited but it was requested that the same may not be deposited till 19.5.2006. Consequently, they were presented on the same date. Thereafter, they have been dishonoured and the bank memos of Dishonour is dated 23.5.2006. Considering this position, there is no substance in the objection of the defendants that the suit claim is barred by limitation. Secondly, there is no merit in the objection that the suit cannot be entertained because of the arbitration clause in the MOU. That is an agreement as far as the plaintiff and defendant nos.1 to 6 are concerned. Admittedly, defendant no.7 is not a party to the MOU. He is stated to have signed the said cheques. In such a situation as between the plaintiff and defendant no.7, 4 there is no arbitration agreement. Therefore, it cannot be said that this Summons for Judgment is bad in law. 9. Lastly, there may be an explanation as far as transaction is concerned, and the reasons as to why same could not go through. That is a aspect which will have to be proved by defendant no.7. His version in the reply to the suit notice and in affidavit-in-reply in present Summons for Judgment cannot be straightaway accepted. It is not as if such triable issues are raised as would not enable the court to hold that no conditions be imposed while permitting defendant no.7 to defend the suit. Taking into account totality of the facts and circumstances, in my view, this is a fit case where conditional leave to defend the suit can be granted to defendant no7. Once he has signed the cheques himself and failed to honour them, then, it cannot be said that the suit is not maintainable qua him or that he has absolutely no concern with the forwarding of the cheques. In this situation, the following order would serve the ends of justice: 10. On defendant no.7 depositing in this court a sum of Rs.25,00,000/- within a period of 12 weeks from today, conditional leave to defend the suit is granted. The suit shall then be transferred to the list of Commercial Causes with usual directions for filing of written statement, discovery and inspection. In default, the plaintiff would be entitled to apply for a decree against defendant no.7. (S.C. DHARMADHIKARI, J.)