1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.336 OF 2008 IN SUMMARY SUIT NO.1947 OF 2008 Vinergy International Pvt. Ltd. ..... Plaintiffs. (formerly known as Sumex Organics Pvt. Ltd.) v/s Dimple Dineshbhai Shah ..... Defendant. Mr. Cyrus Ardheshir i/b Madekar & Co. for plaintiffs. Mr. H.S.S. Murthy with Ms. Shobha Pawar i/b Ravindra Parekh & Co. for defendant. CORAM: V. M. KANADE, J. DATE : 16TH FEBRUARY, 2010 P.C.:- 1. Heard the learned Counsel for Plaintiffs and the learned Counsel for Defendant. 2. Plaintiffs have filed a summary suit for recovery of an amount of Rs. 1,49,50,000/- with interest @ Rs 18% per annum on the amount of Rs 1,00,00,00/- from the date of filing of the suit till payment or realization. 3. The learned Counsel appearing on behalf of Plaintiffs submits that the suit is based on dishonoured cheque which was issued by Defendant for an amount of Rs 1 crore. According to Plaintiffs, the Defendant had issued the cheque 2 as security in favour of Plaintiffs to secure payment in respect of supply effected by Plaintiffs on M/s Umesh Enterprises and its customers. It is Plaintiffs’ case that some time in or around March, 2004 one Umesh Shah, Proprietor of M/s Umesh Enterprises approached Plaintiffs and requested Plaintiffs to supply Furnace Oil and Light Diesel Oil to M/s Umesh Enterprises as well as to the customers of M/s Umesh Enterprises and had agreed to make payment to Plaintiffs on behalf of its customers. Accordingly, Plaintiffs supplied the goods from time to time to diverse customers of M/s Umesh Enterprises as well as to M/s Umesh Enterprises. However, subsequently, the cheques issued by M/s Umesh Enterprises started getting dishonoured and when the matter was taken up with M/s Umesh Enterprises, Plaintiffs were assured that payment towards the said supplies would be effected through another group concern of the said Umesh Enterprises i.e through the Defendant herein who was the brother of the said Umesh Shah and Proprietor of Arihant Petrochem. In view of the assurances given by the Proprietor of M/s Umesh Enterprises, Plaintiffs supplied material to its customers once again and the amount which was due and payable to Plaintiffs as on 11/01/2005 was Rs 3,25,96,444/-. According to Plaintiffs, part payment aggregating to Rs 54,40,000/- was received from the Defendant. However, cheque of Rs 1,00,00,000/- when deposited by Plaintiffs, was dishonoured. According to Plaintiffs, notice was issued to the Defendant after dishonour of the said cheque and a complaint was filed on or about 3 22/8/2005. 4. The learned Counsel appearing on behalf of Plaintiffs firstly submitted that the Defendant filed Company Petition against the present Plaintiffs and the averments made in the said said Company Petition by the Defendant were contrary to the averments made by the Defendant in the affidavit in reply filed to the Summons for Judgment. It is submitted that the Defendant, therefore, had taken a dishonest plea in the reply to the Summons for Judgment and on that ground alone, Plaintiffs are entitled for judgment and decree. It is further submitted that the Defendant in his notice which was issued to Plaintiffs had stated that the Defendant had given an amount of Rs 67,00,000/- by way of loan to Plaintiffs. However, contrary stand is taken by the Defendant in the affidavit in reply filed by the Defendant in this Court. 5. The learned Counsel appearing on behalf of Defendant firstly submitted that there was no privity of contract between Plaintiffs and the Defendant herein and no averment has been made to that effect in the plaint. It is secondly submitted that there is no material placed on record to show that, in fact, statutory notice under section 138 was served on the Defendant after dishonour of the said cheque of Rs 1 crore. It is submitted that, on the contrary, Defendant had sent a notice to Plaintiffs. Even in reply to the said notice, no reference was made regarding dishonour of the cheque of Rs 1 crore. It is submitted that the goods 4 were supplied to M/s Umesh Enterprises which is a Proprietory Concern. There is no written agreement between Plaintiffs and the Defendant herein towards the repayment of the dues which were payable by M/s Umesh Enterprises. It is, therefore, submitted that the present suit is not maintainable as a summary suit and, therefore there is no cause of action as against the present Defendant. 6. After having heard the learned Counsel appearing on behalf of Plaintiffs and Defendant for some time, I am of the view that there is some substance in the submissions made by the learned Counsel appearing on behalf of the Defendant. Perusal of the plaint clearly discloses that there is no averment in the plaint regarding privity of contract between Plaintiffs and the Defendant. In para 3 of the Plaint, there is specific averment that there was an agreement between Plaintiffs and M/s Umesh Enterprises and pursuant to the said agreement, Plaintiffs had supplied goods viz. Furnace Oil and Light Diesel Oil to M/s Umesh Enterprises as well as to its customers. It is an admitted position that Defendant is not one of the customers to whom the said Furnace Oil and Light Diesel Oil was supplied at any time. In para 7 of the plaint, there is an averment to the effect that the Proprietor of M/s Umesh Enterprises had assured Plaintiffs that the payment would be effected through another concern viz. Defendant herein. There is no averment that there is written contract between Plaintiffs and the Defendant to make payment of the amount which is 5 due and payable on behalf of M/s Umesh Enterprises and, thus, from the averments in the plaint it is clearly revealed that there is no privity of contract between Plaintiffs and the Defendant and merely because the cheque was allegedly issued by the Defendant herein, and it was dishonoured, it cannot be said that the said amount was legally due and payable to Plaintiffs herein. Defendant, therefore, has raised a triable issue. 7. So far as the contention of the learned Counsel appearing on behalf of Plaintiffs regarding inconsistencies in the stand taken by the Defendant in the Company Petition and in the affidavit in reply is concerned, merely because there are some inconsistencies that would not by itself give Plaintiffs the right to seek judgment and decree against the Defendant. It is a well settled position in law that Plaintiff has to prove his own case and his case would stand or fall on the evidence and material which is available with Plaintiffs. 8. Under these circumstances, therefore, in my view, Defendant is entitled for unconditional leave to defend the suit. Defendant shall file his Written Statement within 12 weeks from today. 9. Summons for Judgment is accordingly disposed of. (V.M. KANADE, J.) 6