1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 361 OF 2008 IN SUMMARY SUIT NO. 2423 OF 2008 Shridhar Mahabala Shetty .. Plaintiff versus Mrs.Sunita Rajendra Nagouri & Anr. .. Defendants ... Ms.Sushma Singh for the plaintiff. Mr.Pankaj C. Kansara for the defendants. CORAM : D.G. KARNIK, J DATED : 3rd April 2009 P.C.: 1. Heard learned counsel for the parties. 2. This Summons for Judgement is taken out by the plaintiff in a suit by it for recovery of the principal sum of Rs.3,42,237/- and interest thereon. By filing an affidavit in reply the defendants have 2 disputed the liability to pay. 3. The suit is based upon a writing dated 22nd June 2006 copy of which is filed as Exhibit-A. By that writing, the defendant no.1 confirmed that an amount of Rs.3,42,237/- was payable by her with interest at 18% p.a. from 1st August 2006. She also stated that her husband - defendant no.2 was also promising the repayment. Learned counsel for the plaintiff submitted that in view of this clear admission the plaintiff was entitled to a decree. 4. It appears that there were several transactions between the parties. Learned counsel for the plaintiff submits that accounts were settled on 22nd June 2006 and therefore nothing prior to 22nd June 2006 needs to be looked into especially in view of the promise made by the defendant no.1 in writing vide the letter dated 22nd June 2006. Even if it is assumed that the accounts were settled on 22nd June 2006, admittedly there were certain transaction between the parties thereafter. In paragraph no.5 of the plaint, plaintiff has stated "The Plaintiff paid the amounts to M/s.Ropes & Wires/Defendants, in the following manner, by cheques and rest of the amounts were paid by the defendants, to Mr.Subhash Darak, of 3 Harshita on the plaintiff’s behalf. i) Rs.1,70,000/- by cheque dated 09.09.2004 ii) Rs.3,60,000/- by cheque dated 10.01.2007 (underlining supplied) 5. Thus, the plaintiff has admitted that the payments of Rs.1,70,000/- and Rs.3,60,000/- were made by the defendants on its behalf. Payment of Rs.3,60,000/- was made on 10th January 2007 i.e. after the writing dated 22nd June 2006 on which the suit is based. This payment made by the defendants on behalf of the plaintiff is more than the amount claimed as due. In the circumstances, merely on the basis of the writing dated 22nd June 2006 the plaintiff cannot claim that any amount is still due from the defendant. In my view, it is not necessary to refer to the other defences and in particular defence of non-supply "H" form raised by the defendant as even otherwise the defendant has a reasonable defence giving rise to triable issues. Triable issues are In the circumstances, defendants are granted unconditional leave to defend the suit. 6. The suit is transferred to the list of commercial causes. The defendants shall file written statement within 10 weeks. 4 (D.G. KARNIK, J)