1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDEMENT NO. 376 OF 2007 IN SUMMARY SUIT NO. 1916 OF 2007 Mirc Electronics LImited .. Plaintiff versus Mahendra Khimavat Prop.of M/s. Dhanraj Electronics .. Defendant ... Mr.C.N. Chaven for the plaintiff. Mr.P.B. Anand for the defendant. CORAM : D.G. KARNIK, J DATED : 23rd April 2009 P.C.: 1. Heard learned counsel for the parties. 2 Plaintiff has filed this suit for recovery of the price of the goods sold and delivered to the defendant. There is no dispute between the parties 2 that the goods were sold and delivered to the defendant. However, according to the defendant, the price has been paid. In paragraph no.9 of the affidavit in reply, defendant has given the particulars of the price paid. They do show that the price has been paid by the defendant. 3. In the affidavit in rejoinder the plaintiff has not denied the receipt of the amounts mentioned in paragraph 9 of the reply but has contended that those amounts were adjusted towards the past dues. There is no material on record to show that what were the alleged past dues. The statement of account has not been filed to show that there were past dues against which the payments could be adjusted. In the circumstances, in my view, defendant has made a plausible defence to the claim and is entitled to a leave to defend. 4. Learned counsel for the plaintiff however invited my attention to the averments made in paragraph no.18 of the affidavit in reply in which the defendant has admitted that an amount of Rs.50,675/- is due and payable by him. Under second proviso of sub-rule (5) of Rule 3 of Order 37 leave to defend cannot be granted to the defendant unless the admitted amount is deposited in the court. In 3 the circumstances, I pass the following order:- 5. Defendant is granted leave to defend the suit subject to his depositing in the court Rs.50,675/- within six weeks. On such deposit, plaintiff is permitted to withdraw the amount deposited by furnishing a personal bond to refund the amount in the event the suit is dismissed. 6. On such deposit, suit shall stand transferred to the list of commercial causes. Defendant shall file written statement within ten weeks. (D.G. KARNIK, J)