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 NOTICE OF MOTION NO.857 OF 2006 NOTICE OF MOTION NO.857 OF 2006 NOTICE OF MOTION NO.857 OF 2006 IN IN IN SUMMONS FOR JUDGMENT NO.568 OF 2004 SUMMONS FOR JUDGMENT NO.568 OF 2004 SUMMONS FOR JUDGMENT NO.568 OF 2004 IN IN IN SUMMARY SUTI NO.1280 OF 2003 SUMMARY SUTI NO.1280 OF 2003 SUMMARY SUTI NO.1280 OF 2003 M/s.Videocon International Ltd. ...Plaintiffs M/s.Videocon International Ltd. ...Plaintiffs M/s.Videocon International Ltd. ...Plaintiffs Vs. Vs. Vs. M/s.Crystal Audio Limited ...Defendants M/s.Crystal Audio Limited ...Defendants M/s.Crystal Audio Limited ...Defendants Mr.R.D.Soni Advocate i/b.Ram & Co for Plaintiff to show Mr.R.D.Soni Advocate i/b.Ram & Co for Plaintiff to show Mr.R.D.Soni Advocate i/b.Ram & Co for Plaintiff to show cause cause cause Mr.R.A.Kapadia, Sr. Advocate i/b. Y.N.Adhia for Mr.R.A.Kapadia, Sr. Advocate i/b. Y.N.Adhia for Mr.R.A.Kapadia, Sr. Advocate i/b. Y.N.Adhia for Defendants in support of Notice of Motion Defendants in support of Notice of Motion Defendants in support of Notice of Motion CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. P.C. P.C. P.C. 1. The Suit is filed on 7 dishonoured cheques for the 1. The Suit is filed on 7 dishonoured cheques for the 1. The Suit is filed on 7 dishonoured cheques for the aggregate principal amount of Rs.46,38,800/- along with aggregate principal amount of Rs.46,38,800/- along with aggregate principal amount of Rs.46,38,800/- along with interest at the rate of 24% paid on making up a total of interest at the rate of 24% paid on making up a total of interest at the rate of 24% paid on making up a total of Rs.74,46,264/-. The Suit is filed as Summary Suit in Rs.74,46,264/-. The Suit is filed as Summary Suit in Rs.74,46,264/-. The Suit is filed as Summary Suit in which the Summons for Judgment and affidavit in reply came which the Summons for Judgment and affidavit in reply came which the Summons for Judgment and affidavit in reply came to be filed. to be filed. to be filed. 2. The Defendants were represented by their Advocates 2. The Defendants were represented by their Advocates 2. The Defendants were represented by their Advocates at the time of hearing of this Summons for Judgment. By a at the time of hearing of this Summons for Judgment. By a at the time of hearing of this Summons for Judgment. By a reasoned order the Summons for Judgment came to be made reasoned order the Summons for Judgment came to be made reasoned order the Summons for Judgment came to be made absolute and a decree as claimed came to be granted on absolute and a decree as claimed came to be granted on absolute and a decree as claimed came to be granted on 14th September, 2005. Only the amount of interest was 14th September, 2005. Only the amount of interest was 14th September, 2005. Only the amount of interest was modified to 18%. The Defendants have taken out this modified to 18%. The Defendants have taken out this modified to 18%. The Defendants have taken out this Notice of Motion for setting aside the order and decree Notice of Motion for setting aside the order and decree Notice of Motion for setting aside the order and decree dated 14th September, 2005. The decree disposed off the dated 14th September, 2005. The decree disposed off the dated 14th September, 2005. The decree disposed off the entire Summary Suit. Hence, the only remedy open to the entire Summary Suit. Hence, the only remedy open to the entire Summary Suit. Hence, the only remedy open to the Defendants is to file the First Appeal. The Defendants Defendants is to file the First Appeal. The Defendants Defendants is to file the First Appeal. The Defendants would therefore, be required to make payment of Court Fees would therefore, be required to make payment of Court Fees would therefore, be required to make payment of Court Fees as well as deposit the entire decretal amount in the Court as well as deposit the entire decretal amount in the Court as well as deposit the entire decretal amount in the Court in the said Appeal unless sufficient cause was seen by the in the said Appeal unless sufficient cause was seen by the in the said Appeal unless sufficient cause was seen by the Appellate Court to order a lesser deposit under the Appellate Court to order a lesser deposit under the Appellate Court to order a lesser deposit under the provisions of Order 41 Rule 11 of the CPC. By taking out provisions of Order 41 Rule 11 of the CPC. By taking out provisions of Order 41 Rule 11 of the CPC. By taking out this Notice of Motion the Defendants have circumvented the this Notice of Motion the Defendants have circumvented the this Notice of Motion the Defendants have circumvented the said procedure and sought to be heard on merits without said procedure and sought to be heard on merits without said procedure and sought to be heard on merits without the deposit of the decretal amount and without payment of the deposit of the decretal amount and without payment of the deposit of the decretal amount and without payment of Court fees. Accordingly the Plaintiffs contend that this Court fees. Accordingly the Plaintiffs contend that this Court fees. Accordingly the Plaintiffs contend that this Notice of Motion is not maintainable. Notice of Motion is not maintainable. Notice of Motion is not maintainable. 3. Mr. Kapadia on behalf of the Defendants drew my 3. Mr. Kapadia on behalf of the Defendants drew my 3. Mr. Kapadia on behalf of the Defendants drew my attention to the Division Bench Judgment of this Court in attention to the Division Bench Judgment of this Court in attention to the Division Bench Judgment of this Court in Ramchandra Dhondu Dalvi Vs. Vithaldas Gokuldas, AIR, 1964 Ramchandra Dhondu Dalvi Vs. Vithaldas Gokuldas, AIR, 1964 Ramchandra Dhondu Dalvi Vs. Vithaldas Gokuldas, AIR, 1964 Bombay 251 (which was prior to the amendment to the CPC in Bombay 251 (which was prior to the amendment to the CPC in Bombay 251 (which was prior to the amendment to the CPC in 1976 under which Order 37 came to be amended as well as 1976 under which Order 37 came to be amended as well as 1976 under which Order 37 came to be amended as well as the amendments of 1999 and 1977 under which Order 41 of the amendments of 1999 and 1977 under which Order 41 of the amendments of 1999 and 1977 under which Order 41 of the CPC came to be largely amended). In that Judgment the the CPC came to be largely amended). In that Judgment the the CPC came to be largely amended). In that Judgment the power of the Court to set aside Ex-Parte Decree under power of the Court to set aside Ex-Parte Decree under power of the Court to set aside Ex-Parte Decree under Order 37 Rule 4(2) was held not limited to those cases Order 37 Rule 4(2) was held not limited to those cases Order 37 Rule 4(2) was held not limited to those cases filed on the Defendant’s failure to appear in answer to filed on the Defendant’s failure to appear in answer to filed on the Defendant’s failure to appear in answer to the Plaintiff’s Summons for Judgment. The power extended the Plaintiff’s Summons for Judgment. The power extended the Plaintiff’s Summons for Judgment. The power extended to any Ex-parte decree passed in Summary Suits. In this to any Ex-parte decree passed in Summary Suits. In this to any Ex-parte decree passed in Summary Suits. In this case no Ex-parte decree has been passed. The suit has case no Ex-parte decree has been passed. The suit has case no Ex-parte decree has been passed. The suit has been decreed as prayed upon the Summons for Judgment been decreed as prayed upon the Summons for Judgment been decreed as prayed upon the Summons for Judgment having been heard on merits and after considering the having been heard on merits and after considering the having been heard on merits and after considering the Defendants "Substantial Defence". Hence, the judgment Defendants "Substantial Defence". Hence, the judgment Defendants "Substantial Defence". Hence, the judgment referred to by the Defendants does not apply. referred to by the Defendants does not apply. referred to by the Defendants does not apply. 4. It is the case of the Defendants that the defence 4. It is the case of the Defendants that the defence 4. It is the case of the Defendants that the defence shown by them in the Summons for Judgment was not complete shown by them in the Summons for Judgment was not complete shown by them in the Summons for Judgment was not complete and that much later, upon they having engaged the services and that much later, upon they having engaged the services and that much later, upon they having engaged the services of a retainer Advocate, they came upon a document being of a retainer Advocate, they came upon a document being of a retainer Advocate, they came upon a document being the Minutes of a Meeting held between the parties with the Minutes of a Meeting held between the parties with the Minutes of a Meeting held between the parties with regard to certain transactions in which certain changes regard to certain transactions in which certain changes regard to certain transactions in which certain changes were issued only as security for loan to be taken by the were issued only as security for loan to be taken by the were issued only as security for loan to be taken by the Plaintiffs from a Bank. The Minutes of the Meeting relied Plaintiffs from a Bank. The Minutes of the Meeting relied Plaintiffs from a Bank. The Minutes of the Meeting relied upon by the Defendants as Exhibit-I to the affidavit in upon by the Defendants as Exhibit-I to the affidavit in upon by the Defendants as Exhibit-I to the affidavit in support of the Notice of Motion shows certain transactions support of the Notice of Motion shows certain transactions support of the Notice of Motion shows certain transactions between the parties as also a third party ONIDA. between the parties as also a third party ONIDA. between the parties as also a third party ONIDA. 5. It is the Plaintiffs’ contention that these 5. It is the Plaintiffs’ contention that these 5. It is the Plaintiffs’ contention that these Minutes of the Meeting held as far back as 23rd June, Minutes of the Meeting held as far back as 23rd June, Minutes of the Meeting held as far back as 23rd June, 1999, were in respect of certain other cheques. The very 1999, were in respect of certain other cheques. The very 1999, were in respect of certain other cheques. The very first clause being clause (a) of the Minutes of the first clause being clause (a) of the Minutes of the first clause being clause (a) of the Minutes of the Meeting relied upon by the Defendants refers to cheques Meeting relied upon by the Defendants refers to cheques Meeting relied upon by the Defendants refers to cheques issued by the Defendants to the Plaintiff "from time to issued by the Defendants to the Plaintiff "from time to issued by the Defendants to the Plaintiff "from time to time". Hence, it cannot be seen that there was only one time". Hence, it cannot be seen that there was only one time". Hence, it cannot be seen that there was only one transaction between the parties and Minutes referred to transaction between the parties and Minutes referred to transaction between the parties and Minutes referred to only the suit cheques. only the suit cheques. only the suit cheques. 6. The consideration under the dishonoured cheque is 6. The consideration under the dishonoured cheque is 6. The consideration under the dishonoured cheque is statutorily presumed. Hence, it is for the Defendants to statutorily presumed. Hence, it is for the Defendants to statutorily presumed. Hence, it is for the Defendants to rebut the presumption. Mr. Kapadia argued that the rebut the presumption. Mr. Kapadia argued that the rebut the presumption. Mr. Kapadia argued that the Defendants must be taken to have rebutted the presumption Defendants must be taken to have rebutted the presumption Defendants must be taken to have rebutted the presumption by production of the Minutes of the Meeting dated 23rd by production of the Minutes of the Meeting dated 23rd by production of the Minutes of the Meeting dated 23rd June, 1999. June, 1999. June, 1999. 7. Upon considering these minutes the Plaintiffs 7. Upon considering these minutes the Plaintiffs 7. Upon considering these minutes the Plaintiffs reply thereto became essential. That reply shows that the reply thereto became essential. That reply shows that the reply thereto became essential. That reply shows that the Minutes were with regard to entirely different cheques. Minutes were with regard to entirely different cheques. Minutes were with regard to entirely different cheques. The transactions between the parties is not denied. The transactions between the parties is not denied. The transactions between the parties is not denied. Hence, whether or not the suit cheques came to be issued Hence, whether or not the suit cheques came to be issued Hence, whether or not the suit cheques came to be issued for a specific transaction is required to be seen. for a specific transaction is required to be seen. for a specific transaction is required to be seen. 8. The plaint itself shows not only the 7 dishonoured 8. The plaint itself shows not only the 7 dishonoured 8. The plaint itself shows not only the 7 dishonoured cheques along with the memos to dishonour issued by the cheques along with the memos to dishonour issued by the cheques along with the memos to dishonour issued by the Banks but the corresponding invoices for the exact amounts Banks but the corresponding invoices for the exact amounts Banks but the corresponding invoices for the exact amounts of the cheques. The invoices are drawn by the Plaintiffs of the cheques. The invoices are drawn by the Plaintiffs of the cheques. The invoices are drawn by the Plaintiffs in the names of the Defendants. The transaction between in the names of the Defendants. The transaction between in the names of the Defendants. The transaction between the parties is, therefore, complete. The invoices in fact the parties is, therefore, complete. The invoices in fact the parties is, therefore, complete. The invoices in fact represent the contract between the parties in writing represent the contract between the parties in writing represent the contract between the parties in writing evidenced by the very cheques issued by the Defendants evidenced by the very cheques issued by the Defendants evidenced by the very cheques issued by the Defendants which came to be dishonoured. The Summary Suit is, which came to be dishonoured. The Summary Suit is, which came to be dishonoured. The Summary Suit is, therefore, maintainable not only upon the dishonoured therefore, maintainable not only upon the dishonoured therefore, maintainable not only upon the dishonoured cheques upon which the consideration is presumed but also cheques upon which the consideration is presumed but also cheques upon which the consideration is presumed but also the very transaction between the parties which shows the the very transaction between the parties which shows the the very transaction between the parties which shows the consideration payable. consideration payable. consideration payable. 9. The Defendants have not rebutted the statutory 9. The Defendants have not rebutted the statutory 9. The Defendants have not rebutted the statutory presumption even on merits. It is seen that the presumption even on merits. It is seen that the presumption even on merits. It is seen that the transaction between the parties is for the liquidated transaction between the parties is for the liquidated transaction between the parties is for the liquidated amount for which the suit is filed. Upon hearing both the amount for which the suit is filed. Upon hearing both the amount for which the suit is filed. Upon hearing both the parties on merits the suit came to be decreed. parties on merits the suit came to be decreed. parties on merits the suit came to be decreed. 10. The Notice of Motion lacks bonafides. No 10. The Notice of Motion lacks bonafides. No 10. The Notice of Motion lacks bonafides. No sufficient cause is shown. No further substantial defence sufficient cause is shown. No further substantial defence sufficient cause is shown. No further substantial defence is also shown. The Notice of Motion itself is not is also shown. The Notice of Motion itself is not is also shown. The Notice of Motion itself is not maintainable. Only an appeal lies from the Judgment. maintainable. Only an appeal lies from the Judgment. maintainable. Only an appeal lies from the Judgment. 11. For all these reasons the Notice of Motion is 11. For all these reasons the Notice of Motion is 11. For all these reasons the Notice of Motion is dismissed with costs fixed at Rs.3000/-. Execution of the dismissed with costs fixed at Rs.3000/-. Execution of the dismissed with costs fixed at Rs.3000/-. Execution of the Decree shall proceed. Decree shall proceed. Decree shall proceed. (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.)