: 1 : sj-75-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 75 OF 2009 IN SUMMARY SUIT NO.3210 OF 2008 M/s. Kumar Petroleum .. Plaintiffs v/s. Satyapriya Durjodhan Dash & Anr. .. Defendants ......... Mr. K.K. Jadhav i/b J.K. Jadhav for the plaintiffs Mr. Amar K. Shilwant, Pankaj Jain, Rajnesh Agarwal i/b P.P. Jain & Co. for defendant no.1 ......... CORAM : R.Y.GANOO, J. DATE : 22nd DECEMBER, 2010 P.C. : 1. This summons for judgment is taken out against defendant no.1 only. The plaintiffs a partnership firm has filed this suit for recovery of monies on the basis of memorandum of agreement dated 31st May, 2008 purported to have been executed by the plaintiffs on one hand and defendant nos. 2 and 3 on the other. 2. According to plaintiffs, plaintiffs had sold certain goods to defendant no.2 and defendant no.1 was to act as an agent on behalf of : 2 : sj-75-09=.sxw defendant no.2. According to plaintiffs, the demand draft drawn in favour of M/s. Amul Silk Mills Pvt. Ltd. (hereinafter referred to as the said company) was not received by the plaintiffs and that is how the second consignment was not despatched by the plaintiffs. According to plaintiffs, demand draft was sought in favour of said Company by way of internal arrangement between plaintiffs and the said Company. 3. It is noticed that a criminal complaint came to be filed with E.O.W. Unit III, G.B. C.B. CID, Addl. Commissioner of Police, Mumbai against Mr. Vishal Bahadur Sahi and Indrakant Ramnath Zha. After filing of such complaint, present defendant nos. 2 and 3 filed petitions in this Court for quashing of those complaints. According to plaintiffs during the pendency of those petitions, Memorandum of Agreement dated 31st May, 2008, a copy of which appears on page 27 of the plaint, came to be executed and it was agreed between the plaintiffs on one hand, defendant nos. 1 and 2 that defendant no.1 shall pay to plaintiffs Rs.10 lakhs and defendant no.2 shall pay to plaintiff Rs.14 lakhs and that is how the claim of Rs.31 lakhs and odd amount was sought to be settled. In the Memorandum of Agreement, cheque numbers covering Rs.10 lakhs purported to have been given by defendant no.1 have been mentioned. According to plaintiffs, first cheque for Rs.1 lakh dated 31st May, 2008 got dishonoured and that is how plaintiffs were entitled to : 3 : sj-75-09=.sxw recover an amount more particularly set out in terms of the Memorandum of Agreement and that is how the plaintiffs have instituted this suit for Rs.17,26,889/- being the amount arrived at after giving credit to whatever amount which the plaintiffs have received from and out of total liability of Rs.31 lakhs and odd amount. 4. I have heard learned Counsel on both sides. In the first place, it is required to be noted that the suit transaction was between the present plaintiffs and defendant no.2. Defendant no.1 did not secure any benefit for the purposes of entering into transaction. According to plaintiffs, the demand draft drawn in favour of the said company was purchased by defendant no.2 and sent to defendant no.1 for onward transmission to the plaintiffs. The plaintiffs claim that the said demand draft was not received by them. Be that as it may, looking to the entire transaction, the plaintiffs have not been able to show that defendant no.1 did receive any consideration for acting as an agent of defendant no.2 as well as plaintiffs have not been able to show that defendant no. 1 received any consideration from the plaintiffs. It appears that defendant no.1 acted as a mediator for the reasons best known to all the three parties namely plaintiffs, defendant no. 1 and defendant no. 2. : 4 : sj-75-09=.sxw 5. The Memorandum of Understanding dated 31st May, 2008 is entered into on the backdrop of pending complaints in the concerned police department. It is true that defendant no.1 has not raised the question of coercion upon defendant no.1 for the purposes of entering into the MOU, at the same time, the Court cannot overlook the said fact that the said MOU was executed while cases were pending against defendant no.1 and defendant no.2. 6. Learned Counsel Mr. Jadhav fairly conceded that cheques, five in numbers, were drawn by defendant no.1 in favour of one Mr. Akhilesh P. Singh. It was sought to be submitted that Akhilesh P. Singh was the partner of the plaintiffs. In the body of MOU, it is nowhere stated that cheques were drawn in favour of Mr. Akhilesh P. Singh. This will equally means that the cheques which were drawn and referred to in the MOU had nothing to do with the plaintiffs. If the cheques would have been drawn in favour of the plaintiffs, it would have carried some meaning. 7. Apart from this aforesaid observation, looking to the text of the MOU, it is clear that the transaction was between plaintiffs and defendant no.2. Defendant no.1 did not receive any consideration even at the time of entering into the MOU. Possibly, the only reason to enter into this kind of understanding was the pending : 5 : sj-75-09=.sxw criminal complaint against defendant no.1. It is for these reasons, I am inclined to observe that plaintiffs cannot get the benefit of the MOU and recover monies from defendant no.1 8. It was argued by learned Counsel for defendant no.1 that plaintiffs is a partnership firm and have their office in USA. It was sought to be contended that before entering into transaction with persons in India, plaintiffs ought to have registered themselves with the Registrar of Partnership Firm. I am not very much impressed by this argument, to that extent, the argument is rejected. 9. My attention was drawn by learned Counsel for defendant no.1 to the Power of Attorney titled as Special Power of Attorney purported to have been executed by partners of plaintiffs in favour of Kailash K. Singh. A reading of the said Power of Attorney at clause 1 and 4 would go to show that those clauses were applicable in so far as something to happen as against Taj Alloys and its Directors / Partners / Associates. If this Power of Attorney is to be treated as Special Power of Attorney, reading the same as a whole, it could be used by Mr. Kailash K. Singh qua Taj Alloys its Directors / Partners / Associates. Defendant no.1 is not a Director, Partner or Associate of Taj Alloys. Hence, for the purposes of institution of this suit against defendant no.1, this Power of : 6 : sj-75-09=.sxw Attorney is of no avail. Alternatively, even if, contention of the plaintiffs is accepted that by this Power of Attorney, suit can be filed against defendant no.1, by reading paragraph 2 and 3 of the Power of Attorney it would be clear that the Power of Attorney would not be a Special Power of Attorney. It will have to be treated as a general Power of Attorney. The Power of Attorney is engrossed on 50 rupees stamp paper. If a general Power of Attorney is required to be executed, the same ought to have been executed on non-judicial stamp paper of Rs. 100/-. Either way, the said Power of Attorney does not confer authority on the Kailash Singh to institute the suit against defendant no. 1. This is one more reason to hold against the plaintiffs at the stage of hearing of the summons for judgment. 10. For the reasons mentioned aforesaid, I am inclined to observe that defendant no.1 has been able to make out a case to grant unconditional leave to defend the suit. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Unconditional leave is granted to the defendant No.1 to defend the suit. : 7 : sj-75-09=.sxw (ii) Defendant no.1 to file written statement in the office on or before 13th February, 2011. (iii) Defendant no.1 to serve copy of the written statement upon the advocate for the plaintiffs within 10 days from filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)