-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.4980 of 2007 M/s Capital Trading Company ..Petitioner vs. M/s Langar Bidi Company,Poona ..Respondent Shri A.M.Joshi for petitioner. Shri S.M.Gorwadkar for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 28th February, 2008 28th February, 2008 28th February, 2008 P.C. P.C. P.C. 1. By this writ petition under Article 227 of the Constitution of India, the petitioner/original defendant to a summary suit is challenging the order passed by the Trial Court on application (Exh.16) in subject Summary Suit No.157 of 2005. 2. The summary suit was instituted by the respondent against the petitioner/defendant in the Trial Court under Order 37 of the Code of Civil Procedure for recovery of a sum of Rs.32,11,565/- The suit was instituted invoking order 37 of the Code of Civil Procedure. Upon the suit summons being served, the petitioner/defendant entered appearance and that is how the summons for judgment was served upon -2- the petitioner/defendant before me. He applied for leave to defend the suit and that application has been disposed of by the impugned order imposing conditions upon the petitioner/defendant and thus granting conditional leave to defend. The condition imposed is that the petitioner should deposit a sum of Rs.26,00,000/- The date of the order is 19th April, 2007. 3. Initially the writ petition was placed before a learned Single Judge of this Court who recorded a statement of the petitioner’s Advocate that he is not in a position to deposit the sum of Rs.26,00,000/- but he would show his bonafides by depositing a sum of Rs.5,00,000/- within two weeks from 5th July, 2007. That is the undertaking given to this Court but Shri Joshi appearing for the petitioner in all fairness states that this amount is not deposited. 4. Relying upon the Full Bench decision of this Court in the case of Jyotsna K.Valia Vs. T.S.Parekh and Co. reported in 2007(4) Mh.L.J. 517, Shri Joshi submits that the suit was not maintainable as a summary suit in as much as the -3- balance amount at the foot of the account has not been confirmed by the petitioner/defendant. Further, there was a triable issue with regard to the jurisdiction of the Trial Court as well. This is not a case where from reading of a plaint, according to him, the suit could have been filed as a summary suit. 5. Shri Gorwadkar appearing for the original plaintiff supports the impugned order. 6. The plaint, copy of which is annexed to this petition, proceeds on the basis that the petitioner is carrying on business as a dealer of bidis in the State of Rajasthan whereas the original plaintiffs are the manufacturers. In 1998, an agreement took place whereunder the petitioner was appointed as a dealer of the product. The original plaintiff agreed to supply bidis and other products to the defendants and the defendants agreed to pay for the same at Pune. The terms of the contract are referred to. The contract refers to the bills being forwarded for the goods and the petitioner being required to pay the same within 7 days from the receipt otherwise the amount would carry interest. -4- 7. It is pointed out by the plaintiff that the bills were prepared and sent along with the goods and no dispute was raised with regard to the quality of the product or quantum charged in the invoices. Demand drafts were forwarded with regard to the bills which were raised from time to time. By the end of 31st March, 2004, the defendant owed a sum of Rs.52,32,168/- and in due discharge of his liability part payments were made on 6th April and 4th June, 2004. Thereafter also certain adjustments were given and ultimately a sum outstanding was Rs.26,02,218/- Last payment has been relied upon to show that there was acknowledgement of the liability. 8. It is relying upon these averments and at the same time defence raised the Trial Court observed that with a view to grant opportunity to the petitioner/defendant to substantiate his plea of jurisdiction and liability the conditional order is justified in the facts of this case. There is nothing in the Full Bench decision which would indicate that the summary suit itself is not maintainable in such cases. Full Bench in para 30 has observed that in so -5- far as acknowledgments in writing or receipts are concerned, it is not possible to lay down any precise test as to when the summary suit would lie on acknowledgement in writing or receipt. Similarly the law with regard to the part payment is also well settled. That apart, prima facie, in this case when the account was forwarded and the outstanding therein was demanded the petitioner forwarded two demand drafts. This would, amongst other things, amount to accepting the correctness of the amounts at the foot of the account. Therefore, the trial Court was right in imposing conditions. 9. Shri Joshi’s submission, therefore, cannot be accepted. His next contention is with regard to quantum. There also this Court would have considered the submission if the petitioner had shown his bonafides and deposited the sums as assured and undertaken. Once that is also not done, then, in equitable and discretionary jurisdiction of this Court under Article 227 of the Constitution of India, this is not a fit case for interference. 10. Writ Petition is dismissed. However, time -6- to deposit the sum is extended by eight weeks from today. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)