1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.307 OF 2007 IN SUMMARY SUIT NO.3659 OF 2003 Subodh Shetye .. Plaintiff Versus Prabhakar Mehta .. Defendant Mr.Kawli i/b. P.P.Kulkarni for plaintiff Ms.Y.F.Tavaria for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 11th February 2009. P.C. . This summons for judgement is placed for final hearing by consent. Heard both sides. 2. The summary suit proceeds on the basis that there is a written contract as evidenced by the invoice and other annexures to the plaint. It is stated that the defendants approached the plaintiff prior to April 2000 and negotiated for 2 the purchase of goods more particularly set out in para 2. An order was placed for supply of goods in February 2002, the contract was prepared and executed between the plaintiffs and defendant on 1st February 2002 and thereafter by invoice, details of which are set out in para 3, the consignment was exported to U.S.A. 3. Price of consignment in U.S.Dollars is set out and para 5 of the plaint reads thus:- "5. The plaintiff states that Defendant made the payment towards the outstanding amount but belatedly. The defendant initially paid Rs.7,32,300/- (Rupees Seven Lakhs Thirty Two Thousand only) in the month of June 2002. The defendarnt paid further sum of Rs.7,24,500/- (Rupees Seven lakhs Twenty four thousand five hundred only) in the month of September 2003. The defendant 3 paid further sum of Rs.7,21,850/- (Seven Lakhs Twenty one thousand Eight Hundred Fifty only) in the month of November 2002. In the month of November 2003, Defendant paid further sum of Rs.4,01,932/- (Four lakhs one thousand nine hundred thirty two only) to the plaintiff. Thus, the actual amount paid towards principal amount comes to Rs.25,80,582/- (Rupees Twenty Five lakhs Eighty thousand Five Hundred Eightly Two only)." 4. Thereafter, the Advocate’s notice is addressed for recovery of the balance sum and since there was no response to the same, instant suit is filed invoking Order XXXVII of C.P.C. and more particularly Rule 2 thereof. 5. The plaint proceeds on the basis that the consignment was exported from Mumbai. Contract 4 was executed in Mumbai and payment was received by plaintiff in Mumbai. Further, the address of the defendant where he is residing or personally working for gain is that of Mumbai. 6. Mr.Kawli appearing on behalf of plaintiffs reiterates the above factual aspects and submits that there is no defence to the claim. The affidavit in reply is filed, merely raising technical objections. 7. He submits that once this Court has jurisdiction to try the suit as the residence of the defendant is of Mumbai, then, no question arises of applying for leave under clause 12 of the Letters Patent. The defence, therefore, is frivolous and vexatious and the affidavit is filed merely to delay the passing of decree against the defendant. 8. In the affidavit in reply, defendant has 5 raised principally the contention that he is residing in U.S.A. He has stated that he is a non resident Indian having permanent place of residence in U.S.A. and obtained citizenship rights with effect from 24th February 2007, but he is residing in USA from 2000. His residential address has been set out by him and he has stated that the suit therefore, cannot be filed on the basis that he is carrying on business/ working for gain and/or residing in Mumbai. Consequently, if the basis of the claim is that material part of the cause of action has arisen in Mumbai, then, it was obligatory to obtain leave soas to sue the defendants insofar as that part of the cause of action which is accrued outside the jurisdiction of this Court. That having not been done and the plaintiff suppressing the fact of defendant’s residence, this is a fit case where unconditional leave to defend the suit may be granted. 6 9. My attention is invited by the learned Counsel for defendants to the Annexures to the affidavit in reply. 10. However, after perusing the entire material what I find is that the version of defendant with regard to his residence and with regard to the contract as set out in paras 7 and 8 of his reply cannot be said to be such as would make out a case of his being a complete stranger to the transaction and the plaintiff. 11. In this context, it would be useful to reproduce these paragraphs:- "7. With reference to paragraphs 2 to 5 of the said plaint I say that I am the sole proprietor of M/s.J.& Shrey Trading Company having its registered office at 2762 Pepperdale dr.Rowland Heights, California 91748. The said Company carries on business in the nature of commodity futures, options trading and trading in diamonds. I say that prior to obtaining green card of the USA and becoming a citizen thereof, I was residing in Mumbai at 32B, Maimoon 7 Apartment, Palkhigulli, Prabhadevi, Mumbai 400 025 (hereinafter referred to as the said flat). However, the said flat remains locked since I have been residing in USA. I say that my father’s business place is in Zaveri Bazaar area. I was purchasing cashew Kernels for my personal use/consumption from the plaintiff and hence knew the plaintiff from the period before my migration to USA. I say that on account of such acquaintance while I was in Mumbai to visit my family for a short duration in 2001, the plaintiff came and visited me and enquired about life in USA and what I was doing there. I told the plaintiff that I had opened and started a small trading company by the name J & Shrey Trading Co. The plaintiff thereupon told me that he is an exporter of inter alia Indian Cashew Kernels. The plaintiff further told me that he wanted to carry on the business of exporting Cashew Kernels in USA and would like to visit USA to assess and inquire about the market of Cashew Kernels in USA. The plaintiff further requested me to allow him to stay at my house in USA. The plaintiff accordingly landed in USA. He told me that selling Cashew Kernels in local market would be a lucrative and profitable business. The plaintiff further told me that he only wanted a base in USA to carry on his business. The plaintiff thereafter requested me to lend the name of my company for the sale of the Cashew Kernels to the various buyers in USA. The plaintiff promised to pay me a sum of Rs.2000 U.S.Dollar per month and also commission at 25% on the net profit on the transactions towards my 8 remuneration for lending my firm’s name to the plaintiff to export the material." "8. I say that the plaintiff thereafter exported 700 number of cartons of Cashew Kernels. The said consignment arrived on or around 19th March 2002 at Los Angeles. On the request made by the plaintiff in telephonic conversation with me the consignment was released and cleared by M/s.J & Shrey Trading Co. vide cheque dated 20th March 2002. Apart from the cheque payment the cash payment of 100 Dollars was also made by the defendant as labour charges. I say that the said consignment was kept in a warehouse near my house which was duly approved by the plaintiff during his previous visit to USA." 12. Perusal of the above paras would reveal that the plaintiff has proceeded on the basis that there is a written contract and there are part payments but defendant essentially raises the issue of jurisdiction and seeks to support the same by relying upon the Annexures. In such circumstances, interest of justice would be subserved if conditional leave to defend is granted. At this stage, the issue as to whether the claim can be decreed with interest, as 9 claimed or there is no agreement to pay interest, is something which need not be gone into in details. Suffice it to state that if the law permits that if there is dispute with regard to the rate of interest and the amount claimed in that behalf, yet, the Court in appropriate cases can secure principal amount by imposing conditions while granting leave to defend. Taking into account the totality of the facts following order would sub-serve the interest of justice:- "(a) On the defendant depositing in this Court Rs.5 lakhs within eight weeks from today, leave to defend the suit is granted. Thereupon the suit to stand transferred to the list of commercial causes with written statement being filed within a period of twelve weeks, thereafter. Usual directions with regard to discovery and inspection. Summons for 10 Judgement is allowed in the above terms. No costs." (S.C.Dharmadhikari, J)