1 SJ.86/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 86 OF 2009 IN SUMMARY SUIT NO. 25 OF 2009 Shaikh Ismail Ibrahim ..Plaintiff. Vs. Sirajuddin Usman Ansari. ..Defendant. ---- Mr. S.K. Dhara, for the Plaintiff. Ms. Shyamli Hajela i/b M & M Legal Associates, for the Defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 27 th AUGUST, 2010 P.C. 1] Heard learned Advocates appearing for the plaintiff and the defendant. 2] The plaintiff has filed the suit for recovery of a sum of Rs. 4,26,092/- as per particulars of claim at Exhibit ‘P’. The plaintiff claims interest on the principal sum @18% per annum. 3] The plaintiff states that the suit is based on dishonoured cheques. The parties according to plaintiff are known to each other. They were introduced by one Shri Sayed Javedali, Architect. The plaintiff is in the business of distribution of Ice-cream, whereas defendant is a builder. 2 SJ.86/2009 The defendant according to the plaintiff stated that he requires funds and requested that sum of Rs.3 lacs be lent and advanced to him. Accordingly, in the month of February, 2006 the plaintiff deposited Rs.1 lac in the ICICI Bank account of the defendant and thereafter in the month of March, 2006 further sum of Rs.2 lacs was given to the defendant in the presence of the said Shri Sayed Javedali. 4] It is the case of the plaintiff that the defendant handed over two cheques details of which are set out in the paragraph 3 of the plaint, but on presentation for the first time they were dishonoured by the banker on the ground “insufficient funds”. However, both cheques were represented by the plaintiff for collection but the banker dishonored the same on the ground “Drawer’s signature differs”. The argument is that when the dishonour is on the ground that funds are not sufficient, then, that is a dishonour which would entitle the plaintiff to seek a decree against the defendant on the basis of the cheques being dishonoured on presentation. It is contended that it may be cheques are Re-presented by the plaintiff and on the second occasion they may have been dishonoured for separate or distinct reason but that does not mean that dishonour of the cheques on the first occasion for insufficiency of funds, is of no consequence in law. All the more, when proceedings under section 138 of 3 SJ.86/2009 Negotiable Instruments Act, 1881 were initiated, and during the course thereof it was found that the cheques were duly signed by the defendant. For all these reasons this Court should pass a decree as prayed or alternatively and assuming that the defendant has applied for leave to defend, the Court must impose condition of deposit of certain amount and only then the opportunity contemplated by law be afforded to the defendant. 5] Learned Advocate appearing for the defendant on the other hand contended that the suit is not maintainable as summary suit. This is not the case of dishonour of cheques which was admittedly issued by the defendant. This is case where in collusion with one of the employees of the defendant, the plaintiff obtained the cheques. The cheques were not even signed by the defendant. There is a serious dispute and that is why the defendant has been acquitted under section 138 of Negotiable Instruments Act, 1881. Further, my attention is invited to the fact that the suit is not maintainable as summary suit because the plaintiff has averred in paragraph 5 of the plaint that the defendant had, purported to secure the claim of the plaintiff created a security mortgaged an immovable property. Once claim of the plaintiff is secured, then, his remedy is to enforce that security and a summary suit would not be maintainable. 6] Having perused the plaintiff and annexures thereto, so also the affidavits filed on record, I am of the view that there is substance in the 4 SJ.86/2009 contentions raised by the learned Advocate for the defendant that this is a case where the cheques were not admittedly issued by the defendant. The defendant in his affidavit in reply has contended that the case of the plaintiff is doubtful, in as much as the plaintiff has not deposited any amount in the ICICI Bank account. Further, it is stated that the sum of Rs.2 lacs were lent and advanced in cash. The plaintiff will have to prove as to how this amount was lent and advanced because defendant does not admit the receipt of the sum. 7] Further, the plaintiff is accused of colluding with one of the employees of the defendant in obtaining the cheques. It is for this reason, the cheques had not been honoured with an endorsement “drawer’s signature differs”. The defendant had stated that he is not aware that cheques were in possession of the plaintiff. He has disputed the signatures on the cheques. The signatures on the documents including the memorandum of mortgage are not that of the plaintiff is his plea. 8] It is in such circumstances, and when even in proceeding under section 138 of Negotiable Instruments Act,1881 there is acquittal, then, at this stage this defence cannot be said to be false, frivolous and vexatious. The defence is such which would require the Court to conduct a trial by giving an opportunity to the parties to prove their rival cases. Dispute raised can safely be termed as bonafide. Equally, if the plaintiff is relying upon the mortgage in his favour of a immovable property, then, all the 5 SJ.86/2009 more while retaining such security he could have maintained the suit. Suit is therefore clearly falls outside the parameters of Order XXXVII of the Code of Civil Procedure, 1908. 9] For all these reasons, and finding that there is bonafide defence to the claim, I am of the view that the defendant is entitled to unconditional leave to defend the suit. There is no substance in the technical objection of the plaintiff’s Advocate that the defendant has not applied for leave to defend. Defendant has filed affidavit in reply to the Summons for Judgment and there is rejoinder thereto. The parties have proceeded on the basis that pleas raised in the affidavit in reply are to support the prayer for grant of unconditional leave to defend. The said technical objection is overruled. 10] The Summons for Judgment is dismissed. Defendant is granted unconditional leave to defend the suit. The suit is transferred to the list of Commercial Causes. Defendant to file written statement within 12 weeks from today, as also to comply with usual directions including Discovery and inspection. [S.C. DHARMADHIKARI, J.]