1 Sj294-08 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 294 OF 2008 IN SUMMARY SUIT NO. 2089 OF 2005 Nana Gajanan Patekar. Adult Indian Inhabitant Residing permanently at A-304, Sheetal, Apna Ghar, Samarth Nagar, Andheri-West, Mumbai – 400 058. ... Plaintiff. V/s. 1. M/s. Megastar & Anr. 2. Dilip Dhanwani Proprietor of M/s. Megastar having its office at First Floor, Manek Chambers, Lamington Road, Mumbai – 400 004. ALSO AT 202/A, Seagul Building, Carter Road, Bandra-West, Mumbai – 400 050. ... Defendants Mr. N. B. Pawaskar for Plaintiff. Mr. Shailesh Shah i/by M/s. Saru Shah & Co. for Defendants. CORAM : A.A.SAYED, J. JUDGEMENT RESERVED ON 09/03/2011. JUDGEMENT DELIVERED ON 21/03/2011. ORAL JUDGMENT : 2 Sj294-08 1. This summons for judgment is taken out by the plaintiff to enter judgment in his favour in the suit against the defendants for the sum of Rs. 25 lacs as per the particulars of claim annexed to the plaint and further “service charges” (appears to be an error) on the principal amount at 18% p.a. with monthly rests from 30/6/2002 till payment and/or realisation. 2. The plaintiff’s case in the plaint is that he had agreed to act as a male lead i.e. hero in a feature film ‘Vadh’ which was to be produced by defendant no. 2 who is the proprietor of defendant no. 1 firm, for a total remuneration of Rs. 75 lacs and that accordingly the plaintiff was given two cheques viz., one for Rs. 50 lacs dated 27.03.2002 and the other for Rs. 25 lacs dated 30.06.2002. The cheque for Rs. 25 lacs is the subject matter of the present suit and summons for judgment. According to the plaintiff, when he presented the said cheque of Rs. 25 lacs to his bank, the same was returned dishonoured. 3. In the affidavit in reply, the Defendants have denied their liability. The Defendant No. 2 has pointed out the circumstances under which the aforestated two cheques of Rs. 50 lacs and Rs. 25 lacs have been issued so as to get the film released. The Defendant No.2 has stated that the cheques were issued under coercion and as per the diktats of the plaintiff. It is contended by the defendant no.2 that though the remuneration was fixed at Rs. 25 lacs, it was agreed by the plaintiff that the further remuneration would depend on the success of the film, which film eventually was not successful at the box office. The plaintiff however has denied 3 Sj294-08 the aforementioned facts in his rejoinder. 4. It is noticed that under the Memorandum of Understanding dated 2.9.2000 executed between the plaintiff and the defendant no. 2, (which according to the defendants was ante dated), the remuneration is shown as Rs. 25 lacs. This MOU has not been disclosed in the plaint. In the rejoinder, the plaintiff’s case is that the remuneration was fixed at Rs. 1 crore. 5. Thus, from what is stated above, three different amounts have emerged as remuneration. In the plaint, the plaintiff’s case is that the total remuneration was fixed at Rs. 75 lacs; in the rejoinder it is stated to be Rs. 1 crore and under the aforesaid MOU, it is Rs. 25 lacs. Furthermore, it is not in dispute that the plaintiff has already received a sum of Rs. 25 lacs by cheques. 6. It is pertinent to note that though two cheques of Rs 50 lacs and Rs. 25 lacs were issued by the defendants in favour of the plaintiff, the suit is filed only in respect of one cheque of Rs. 25 lacs. 7. In the case of Santosh Kumar vs. Bhai Mool Singh, AIR 1958 SC 321 relied upon by the learned counsel for the defendants. a four-Judge Bench of the Hon’ble Supreme Court has observed in para 14 as follows :- “It is always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion. But it is necessary to 4 Sj294-08 understand the reason for a special procedure of this kind in order that the discretion may be properly exercised. The object is explained in Kesavan v. South India Bank Ltd., I.L.R. 1950 mad. 251, and is examined in greater detail in Sundaram Chettiar v. Valli Ammal (supra), to which we have just referred. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in class of cases where speedy decisions are desirable in the interests of trade and commerce. In general, therefore, the test is to see whether the defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defence on those facts.” 8. Considering the facts and circumstances of the case and the exposition of law laid down in the aforesaid judgment of the Apex Court, in my view the defendants have raised a plausible defence and they ought to be given an opportunity to explain under what circumstances the cheque of Rs. 25 lacs was given by them to the plaintiff inasmuch as the remuneration shown in the MOU dated 2.9.2000 is Rs. 25 lacs and it is an admitted position that the plaintiff has been paid an amount of Rs. 25 lacs. 9. In my opinion, triable issues are raised and I am inclined to grant 5 Sj294-08 unconditional leave to the defendants to defend the suit. Hence, the following order : (i) The defendants are granted unconditional leave to defend the suit. (ii) Written Statement to be filed within 30 days. (iii) The suit shall stand transferred to the list of suits of Commercial Causes. (iv) Discovery and inspection within twelve weeks from today. 10. The summons for judgment to stand disposed of accordingly. (A.A.SAYED, J.)