1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.510 of 2009. in Summary Suit No.2637 of 2007 India Infoline Ltd. .. Plaintiffs v/s. Aarti Gunjekar & Anr. ..Defendants Mr.D.D.Madon, Sr. Counsel with Ms. Jyoti Ghag i/b. M/s. Thakore Jariwala & Associates for the Plaintiffs. Mrs. Aarti Gunjekar, Defendant No.1 in person Mr.Satish Gunjekar, Defendant No.2 in person. CORAM : R.Y.GANOO, J. DATED : 28th June , 2010 P.C. : 1. Defendant Nos.1 and 2 are present in person. At the outset it is required to be mentioned that the defendant no.1 argued the matter for herself. Defendant No.2 has filed affidavit in reply. He supported arguments advanced by defendant no.1. 2. Heard learned Senior Counsel for the plaintiffs and defendant no.1 in person. There was dispute between the plaintiffs on one hand and the defendants on the other and it is noticed that the document titled as 2 letter of settlement came to be arrived at between plaintiffs on one hand and the defendants on the other, being document purported to be of 16.7.2009. 3. According to plaintiffs, by this document an overall settlement was arrived at between plaintiffs and defendants and upon defendants receiving the sum of Rs.18,00,000/- all proceedings between the parties in civil as well as criminal courts were to come to an end. It is not in dispute that the defendants have received the sum of Rs. 18,00,000/- as set out in the said letter of settlement. 4. Plaintiffs at one stage intended to challenge the award passed by the learned Arbitrator at National Stock Exchange and the plaintiffs had therefore deposited the sum of Rs.5,00,000/- with National Stock Exchange. After the settlement and after receipt of Rs.18,00,000/- by the defendants, the plaintiffs expected that the said amount shall come back to them, but when they checked up in the office of National Stock Exchange they came to know that the said amount has been withdrawn by the defendants. About withdrawal of the said amount by the defendants there is no dispute. 3 5. It is to be noted that this suit is filed for recovery of Rs.18,00,000/- and interest thereon on the ground that defendants by receiving Rs. 18,00,000/- under letter of settlement and Rs.5,00,000/- from the national stock exchange breached the terms of settlement and therefore they are not entitled to retain with them Rs.18,00,000/-. 6. After having heard learned Senior Counsel for the plaintiffs and the defendants, it is noticed that the letter of settlement spoke only of sum of Rs.18,00,000/-. In the body of letter of settlement there is one sentence which is very important and it is as follows: “this settlement is valid on subject to realisation of the 2 cheques and provided no police case is taken against me as per Section 182 IPC.” The word “me” is referable to the defendants. In the body of the letter of settlement there is reference to only one cheque namely cheque for Rs.18,00,000/- bearing No.687507 dated 16.7.2009. The figure 2 appearing in the aforesaid sentence appears to be corrected to 1 and initials are found towards confirmation of the said correction. Across the bar, learned Senior Counsel drew my attention to the copy of the settlement which is relied upon by the defendant no.1 in her affidavit in reply and it also bears correction so as to convert it into 1 from 2. 4 As against this, it is the argument of the defendants that settlement was to be arrived after getting the amount of 2 cheques. The plaintiffs claim that defendants were not justified in receiving Rs. 23,00,000/- and they can at the best be entitled to get Rs.18,00,000/-. Because they have received Rs.23,00,000/- there is breach of agreement and therefore the plaintiffs have filed suit for recovery of Rs.18,00,000/-. 7. According to the defendants the amount was withdrawn by the defendants on the basis of the order dated 23.7.2009 passed in arbitration proceeding i.e. Arbitration Petition (L) No.246 of 2009. Even if this is accepted, still it is not clear as to how the amount was paid by the stock exchange authorities to the defendants. In any case I have observed that the suit has been filed for recovery of Rs. 18,00,000/-. The question of payment of Rs.5,00,000/- to the defendants is not required to be gone into in this suit. 8. I am not inclined to agree with the arguments of the counsel for plaintiffs. On perusal of letter it is clear that the defendants were to settle the matter for Rs.18,00,000/- and that too on receipt of cheque 5 bearing No.087507. Under what circumstances the amount lying with stock exchange came to be received by the defendants would not fall for determination of this court. According to plaintiffs copy of settlement was forwarded to the stock exchange for their information. As to who is responsible for allowing defendants to receive Rs. 5,00,000/- cannot be gone into in this suit. Question before this Court is whether defendants have committed breach of agreement i.e. letter of settlement. Across the bar it is indicated by the defendants that all matters are settled including criminal cases. If this be so defendants have received Rs.18,00,000/- towards settlement. About receipt of Rs.5,00,000/- by the defendants it may provide independent cause of action to the plaintiffs. It is in these circumstances, the defendants have put up a good defence and they are entitled to unconditional leave to defend. Hence summons for judgment is disposed of by passing following order: ORDER i) Unconditional leave to defend is granted to both the defendants. ii) Defendants to file written statement on 16.8.2010 directly in 6 the Court. Adjourned to 16.8.2010 for written statement. iii) Original letter of settlement made available to the court by counsel the plaintiffs is returned to counsel for the plaintiffs. [R.Y.GANOO, J.]