1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 238 OF 2005 IN SUIT NO. 5036 OF 2000 Ahco Exports. ... Plaintiffs vs. M/s. Speciality Can (India) Pvt. Ltd., .. Defendants. Mr. Rushabh Shah a/w A.A. Lokhandwala i/by Lokhandwala & Co. for plaintiffs. Mr. Chirag Balsara a/w Mihir Mody i/by K. Ashar & Co. for defendants. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. DATE : 25th OCTOBER, 2005. DATE : 25th OCTOBER, 2005. DATE : 25th OCTOBER, 2005. P.C. . There is a delay in taking out the summons for judgment. The delay has been explained in the affidavit in support which has been filed along with the summons for judgment that there was earlier summons for judgment taken in 2003 and the same was withdrawn with liberty to take out fresh summons for judgment. Thereafter the chamber summons was taken out and thereafter the present summons for judgment 2 is taken out. For the reasons set in the affidavit in support the delay is condoned. However, the same is subject to the payment of cost quantified at Rs. 1000/- (One thousand only) to be paid to the Maharashtra State Legal Services Authority by the plaintiff within a period of one week from today. 2. The present suit is based on two bills of exchange which are at Exhibit A and Exhibit C to the plaint. The bills of exchange are drawn by the plaintiff and payable to the Orient Bank of Commerce. The plaintiff have made averments in paras. 3 and 4 of the plaint that the bank has reendorsed the said bills to the plaintiffs herein and, therefore, the plaintiffs are holder in due course and, therefore, entitled to the reliefs as prayed for. The defence raised is firstly that the goods which were delivered under the two bills were defective and the correspondence has been raised at the relevant time. I am of the opinion that once there is an execution of the bill of exchange and the bill of exchange having been negotiated then it is not permissible to investigate the original transaction for the goods sold and delivered. The bills of exchange being negotiable instrument consideration is presumed under the provisions of the Negotiable Instrument Act and, therefore, it is not permissible that the acceptor be permitted to resile from his commitment to pay under the bill of 3 exchange on the ground that there are defects in the goods delivered by the plaintiff to the defendant herein. Thus, I do not find any merit in the contention that the goods supplied were defective and the correspondence which has been relied upon by the learned counsel for the defendant. 3. The next contention raised by the learned counsel for the defendant is that the drawer is not entitled to maintain the suit. The said contention is also without any merit because the plaintiff is the holder in due course and thus entitled to maintain the suit. However, with a view to give an opportunity to the defendant to defend the suit, I direct the defendant to deposit a sum of Rs. 3 lacs in this Court within a period of four weeks from today failing which the plaintiff will be entitled to decree. The amount if so deposited, the Prothonotary and Senior Master is directed to deposit the same in a fixed deposit with any nationalised bank initially for a period of one year and renew the same from time to time till further orders from this Court. 2. Suit transferred to the list of Commercial Causes. Written Statement or points of defence to be filed four weeks from the date of deposit. Affidavits list of documents to be filed within four weeks thereafter. Inspection within four weeks 4 thereafter. Suit to be on Board of the learned Judge taking Commercial Causes.