1 sj13-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No. 13 of 2009 . in Summary Suit No. 2564 of 2007 Maheshkumar H. Kakwani .. Plaintiff v/s. Manghandas Jayaramdas & Ors. ..Defendants Mr.Ramesh Jain for the Plaintiff. Mr.K.T.Kukreja i/b. Devang Shah for the Defendant Nos.1, 2, 6 and 7 None for the defendant nos.1, 3 and 4 CORAM : R.Y.GANOO, J. DATED : 15th November , 2010 P.C. : 1. Heard learned Counsel on behalf of the plaintiff as well as Mr. Kukreja for the defendant Nos.1, 2, 6 and 7. None is present for the defendant nos.3 and 4. Defendant No.5 has expired. Chamber Order to bring heirs of Defendant No.5 is pending. On account of death of defendant no.5 this Order is passed in the aforesaid summons for judgment, concerning defendant nos.1, 2, 3, 4, 6 and 7. The plaintiff 2 sj13-09.sxw has instituted the present suit for recovery of monies on the strength of Bill of Exchange dated 28.11.2002. The Bill of Exchange is signed by the defendant no.4 apparently for and on behalf of defendant No.1. Manghandas Jayramdas, a partnership firm as drawer of the said bill of Exchange. The Bill of Exchange is purported to have been accepted by a firm Manghandas Parmanand. 2. It is admitted by the plaintiff that the Bill of Exchange is executed by defendant no.4 as maker for and on behalf of Manghandas Jayramdas. It is signed by defendant no.4 for and on behalf of Manghandas Parmanand, a partnership firm. My attention was drawn by learned Counsel for defendant nos.1, 2, 6 and 7 to para no.1 of the plaint wherein specific averment is made that defendant no.4 Tulsi is partner of defendant no.2 i.e. the firm which is supposed to have accepted the Bill of Exchange. He pointed out that reading of para 1 would clearly go to show that the defendant no.4 was not partner of defendant no.1. 3. If the plaintiff has approached the Court with a specific averment as set out in para 1 of the plaint which shows that defendant no.4 is not 3 sj13-09.sxw the partner of defendant no.1, the act of signing the Bill of Exchange as a maker for defendant no.1 cannot be accepted so as to bind defendant no.1 and its partners. If this be so, the Bill of Exchange is drawn by a person who had no authority so as to bind defendant no.1 and its partners. Acceptance of the same by defendant no.2 through its partner, namely defendant no.4 cannot bind defendant no.1 and no liability can be fastened upon defendant nos.1 and its partner. If the drawing of the Bill of Exchange itself is defective, no claim can lie against all the defendants. 4. Learned Counsel Mr. Jain tried to submit that the Tax Deduction Certificate and various other cheques issued in favour of the plaintiff for and on behalf of the defendant no.1 were signed by the defendant no.4. According to him that goes to show that defendant no.4 had authority to sign the Bill of Exchange as maker for and on behalf of defendant no.1. 5. Learned Counsel for the plaintiff tried to point out to the court certain portion of affidavit in reply filed by defendant no.6 for and on behalf of defendant no.1 where it is admitted by defendant no.6 that 4 sj13-09.sxw defendant no.4 used to manage the affairs of defendant no.1. Even if this statement is accepted as it is, that did not confer any authority on defendant no.4 to execute a Bill of Exchange for and on behalf of defendant no.1. Signing certain documents by Defendant No.4 on behalf of Defendant No.1 as claimed by plaintiffs would not bind Defendant No.1 and its partners as the making of the Bill of Exchange itself is defective. The defendant nos.1, 2, 3, 4, 6 and 7 will be entitled to unconditional leave to defend. Hence following order is passed. ORDER i) Defendant nos.1, 2, 3, 4, 6 and 7 are granted unconditional leave to defend the suit. These defendants to file written statement directly in the office on or before 19.1.2011. ii) Summons for Judgment stands disposed of in above terms against defendant nos.1, 2, 3, 4, 6 and 7. There shall be no order as to costs. iii) After the heirs of defendant no.5 are brought on record, it will 5 sj13-09.sxw be open for the plaintiff to take out fresh Summons for Judgment against the heirs. Accordingly Summons for Judgment is disposed of as against Defendant No.5. [R.Y.GANOO, J.]