*1* sj.360.09.ss.945.09.1007.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.360 OF 2009 IN SUMMARY SUIT NO.945 OF 2009 Devidas Sadashiv Yeole. ..Plaintiff -versus- Aarti Arun Merchant. ..Defendant ............ Mr.N.S.Patil, for the Plaintiff. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 14th November, 2011. P.C.: 1 The Plaintiff has filed this Summary Suit on the basis of dishonoured cheques. 2 Liability of the Defendant has been referred to in the plaint. There is extensive reference to the claim of the Plaintiff against Arun Merchant and the Defendant. There is reference to the proceedings under the Negotiable Instrument Act, 1881 and after same is concluded, the orders of the Trial Court and the Sessions Court came to be challenged by filing Criminal Revision Application Nos.284/2005 and 285/2005 before this Court. When these revision applications were placed for admission before the learned Single Judge, both sides agreed that a sum of Rs.4.40 lacs would be paid towards full and final settlement of the Plaintiff’s claim. Therefore, eleven postdated cheques came to be forwarded to the Plaintiff. Each of these cheques came to be dishonoured. In such circumstances and when dishonour of cheques is also not disputed that the instant suit is filed as a summary suit invoking Order XXXVII of the *2* sj.360.09.ss.945.09.1007.sxw Code of Civil Procedure, 1908. 3 I have perused the plaint and annexures with the assistance of the learned counsel appearing for the Plaintiff. 4 It is stated that when the Defendant entered appearance through an Advocate, the present Summons for Judgment has been moved. Once the Summons for Judgment was duly served on the Defendant, it was for the Defendant to seek leave to defend of this Court by filing appropriate application and affidavit. 5 On the other hand, there is affidavit in reply to the Summons for Judgment wherein it is stated that the Plaintiff has to pay to the Defendant a sum of Rs.2.20 lacs as he has been overpaid during the course of proceedings before the learned Magistrate under section 138 of the Negotiable Instrument Act, 1881. However, neither the Defendant nor her Advocate is present in the Court. They were not present on earlier occasion as well. In paragraph 7 of the affidavit in reply, this is what is stated:- “7. The Defendant further states that due to financial constraint the Defendant was unable to honour the said cheques issued by her under the consent terms. Further out of 11 cheques the Defendant was able to pay one installment of Rs.40,000/- only to the Plaintiff and after the completion/ expiry of the 11 months period which was granted for fulfillment of terms of consent term, the matter appeared for hearing before his honour justice A.S.Oka and since the husband of the Defendant failed to comply with the consent terms, request was made by Advocate for husband of Defendant to grant one more chance, however, as the husband of the Defendant failed to comply and settlement was not carried out, the revision application preferred by the husband of the Defendant was finally heard and decided on merits and the same came to be dismissed by the Hon’ble Justice A.S.Oka vide the order dated 28.08.2006 and husband of the Defendant was called upon to surrender to undergo the *3* sj.360.09.ss.945.09.1007.sxw sentence and on request of the Advocate of the husband of the Defendant on the ground of illhealth and various ailments suffered by the husband of the Defendant, further six weeks time was granted for surrender to undergo sentence.” 6 Thus, all throughout there is reference made to the ailment of the husband of Defendant and some misuse of cheques, however, all this appears to be a case raised for the first time and despite being a party to the terms before the learned Single Judge. It is pertinent to note that the terms before the learned Single Judge have been arrived at on 13.09.2005. Reference to earlier proceedings is of no assistance to the Defendant. Office endorsement shows that appearance of the Advocate of Defendant, so also, the reply of Defendant is under objection. Several objections have not been complied with by the Advocate representing the Defendant. Yet, I have perused this affidavit in reply, but I find nothing therein which would enable the Defendant to seek leave to defend the suit even by imposing certain conditions. 7 Having satisfied myself that the claim in the suit is maintainable under Order XXXVII of the Code of Civil Procedure, 1908, that the suit has been rightly instituted in this Court as the Defendant is residing within territorial jurisdiction of this Court, so also, the claim of the Plaintiff is within limitation, in the larger interest of justice to give one more opportunity to the Defendant, the following order is passed:- (a) On Defendant depositing in this Court a sum of Rs.4 lacs within a period of twelve weeks from today, the suit shall be transferred to the list of commercial causes with direction to file the Written Statement within eight weeks. Discovery and inspection be completed within this period. *4* sj.360.09.ss.945.09.1007.sxw (b) Non compliance of this order, will result in placing the suit for passing of exparte decree. (c) The Summons for Judgment is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)