-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONIS FOR JUDGMENT 293 OF 2008 in SUMMARY SUIT NO.2170 OF 2008 . Devenlal Pannalal Shah & anr ..Plaintiffs. Versus Hetal Devendra Shah ..Defendant. Mr. Vivek Walawalkar i.b M/s. B. Amin & Co., for Plaintiffs. Mr. P. R. Arjunwadkar a/w Ms. P .U.Badadare for Defendant. Coram : R. V. MORE, J. Date : January 13, 2010. P. C. : 1. The plaintiffs have filed the above suit under the provisions of Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 for recovery of an amount of Rs.1,86,480/- along with interest at the rate of 12 % p.a. on the principal sum of Rs.1,68,000/-. 2. The suit is based on a written agreement dated 21st March 2006 between the plaintiffs and the defendant. The plaintiffs are the parents of the defendant and the defendant is the only son of the plaintiffs. The plaintiff no. 1 and the defendant were the partners of the firm by name M/s. Overseas Business Corporation and the plaintiff no.2 and the defendant were the partners of the firm by name M/s. R. D. Engineering and Company. By the said agreement between the plaintiffs and the -: 2 :- defendant, the plaintiffs retired from the said two firms and surrendered/ relinquished their right, title and interest in the said firms in favour of the defendant, in consideration of payment of Rs.12,000/- p.m. by the defendant to the plaintiffs. It is the case of the plaintiffs that the defendant pursuant to the said agreement paid them an amount of Rs.12,000/- per month till April 2007, however, thereafter for no reasons he stopped making payment to the plaintiffs and therefore, they were constrained to file the present suit under the provisions of Order-XXXVII Rule-2 of the Code of Civil Procedure, 1908 for recovery of debt on a written contract. 3. The writ of summons was served on the defendant and he put his appearance in the present proceedings through learned counsel Mr. P. R. Arjunwadkar. The plaintiffs thereafter have taken out this chamber summons. The defendant filed reply to the present chamber summons. Thereafter the plaintiffs filed rejoinder, to which in reply the defendant filed a sur-rejoinder. An additional affidavit is also filed by the defendant. 4. Mr. Walawalkar, learned counsel appearing on behalf of the plaintiffs took me through the suit agreement between the plaintiffs and the defendant. He invited my attention to the reply, sur-rejoinder as well as additional affidavit filed by the defendant and submitted that the defence of the defendant is sham and bogus, and therefore, the suit deserves to be decreed. 5. Mr. P. R. Arjunwadkar, learned counsel appearing on behalf of the defendant firstly submitted that the suit is not maintainable under the -: 3 :- provisions of Order XXXVII Rule 2 of the Code of Civil Procedure and the remedy of the plaintiffs, if any, is to file a suit for specific performance of suit agreement. In this regard, he submitted that under the suit agreement the parties were obliged to perform reciprocal promises/obligations, and as the plaintiffs have failed to perform their promise, the suit cannot be filed under order XXXVII Rule 2 of the CPC. In order to elaborate his contention he invited my attention to page 34 of the present summons for judgment which is Income Tax return of M/s. Overseas Business Corporation for the assessment year 2007-2008, the Certificate of Registration at page no. 47 and a certificate allegedly signed by the plaintiff no.1 at page no. 51. He submitted that the income tax returns of M/s. Overseas Business Corporation do show the status of said firm is that of partnership firm and therefore it cannot be said that the partnership firm of the plaintiff no.1 and defendant is dissolved pursuant to the suit agreement. He submitted that the Certificate of Registration at page no. 47 also discloses the name of the plaintiff no.1 as a partner of the said firm which fact is evidenced by document at page no.51. He lastly submitted that the plaintiff no.1 himself in the month of September 2007 claimed that he is partner of the said partnership firm. Regarding the business of M/s. R. D. Engineering, learned counsel Mr. Arjunwadkar submitted that the plaintiff no.2 and one Mr. Dinkar Salunkhe were partners and the defendant has no concern with the said business. In this regard, he relied upon the deed of dissolution dated 31st March 2006 between the plaintiff no.2 and said Dinkar -: 4 :- Salunkhe. 6. The defendant has not denied the execution of agreement dated 21st March 2006 between the plaintiffs and himself. He has also not denied that pursuant to this agreement he paid Rs.12,000/- p.m. to the plaintiffs till April 2007. Now the question which falls for consideration is that the suit which is based on the agreement dated 21st March 2006 can fall within the ambit of Order XXXVII Rule 2 of the Code of Civil Procedure, 1908. 7. The very fact that the defendant has paid to the plaintiffs an amount of Rs.12,000/- p.m. till April 2007, prima facie shows that the parties have acted upon the said agreement. Therefore, in my opinion the present suit falls under clause (b) of sub clause (2) of Order XXXVII Rule 1 of the Code of Civil Procedure, 1908 and is maintainable. 8. Now, let us consider the defence of the defendant. It is the case of the defendant that under the suit agreement reciprocal promises/ obligations were to be performed and the plaintiffs have failed to perform their promises/obligations. In this regard the defendant relied upon various documents mentioned above. 9. It is pertinent to note that the defendant has filed his reply to the summons for judgment on 2nd February 2009. In paragraph no.10 of the said reply, the defendant specifically admitted that in pursuance of the suit agreement the he took over the business of both the aforesaid firms and thereafter he made steady progress by securing supply orders of various -: 5 :- engineering goods to the extent of Rs.3 crores during the financial year 2007-08 and 2008-09. In paragraph no. 12 of the said reply, he has made complaint that plaintiffs were disturbing the growth in the business of defendant, and therefore he suffered loss over Rs.16 to 17 lacs. In paragraph no. 14 of the said reply, the defendant has averred that he lost most of the business since the plaintiffs damaged the reputation of the defendant in the commercial market. In this paragraph the defendant has given reasons why the payment of Rs.12,000/- p.m. to the plaintiffs is stopped. The payment of Rs.12,000/- p.m. to the plaintiffs is linked by the defendant to the successful running of his business. If the abovesaid admissions of the defendant are considered in the proper perspectives, it is clear that the defendant in so many words admitted that he took over the business of the abovesaid firms from the plaintiffs and is running the same. 10. In the teeth of above admissions, now let us consider the documents relied upon by the defendant. So far as the income tax returns of M/s. Overseas Business Corporation of the year 2007-2008 is concerned, it is true that the status of M/s. Overseas Business Corporation is shown that of partnership firm. However, in the column of remuneration to the partners, name of the defendant only is shown and there is no reference to the names of the plaintiffs. Regarding the Certificate of Registration of the said partnership firm, the name of the plaintiff no.1 is shown as partner. It appears that the defendant has not given any information to the Registrar of Firms about the suit agreement and the retirement of the plaintiff no.1, -: 6 :- and therefore name of the plaintiff no.1 continued in the Register of Firms. However, that does not change the position, viz., the defendant exclusively is running the business of the M/s. Overseas Business Corporation. 11. So far as the Certificate dated 6th February 2007 given by the plaintiff no.1 claiming to be a partner of M/s. Overseas Business Corporation is concerned, the plaintiff has filed affidavit-in-sur-rejoinder dated 4th May 2009. In paragraph 14 of the said affidavit the plaintiff no.1 has specifically denied his signature on the said certificate and it is claimed that the said certificate is forged one. 12. So far as the deed of dissolution between the plaintiff no.2 and Dinkar Salunkhe is concerned, the plaintiffs have also filed another deed of dissolution executed between the plaintiff no.2 and defendant in respect of the M/s. R. D. Engineering Company. The case of the plaintiffs in this regard is that said Dinkar Salunkhe had already retired in the year 2005 from the partnership firm, however, there is no record and therefore probably the deed of dissolution between the defendant no.2 and said Dinkar was executed. This submission deserves to be accepted. 13. Taking into consideration the totality of the circumstances, prima facie I am of the opinion that the defence of the defendant is sham, bogus and not bonafide. Therefore, the defendant is not entitled to the grant of unconditional leave to defend the suit. Accordingly, I dispose of the present chamber summons by passing following order. -: 7 :- : O R D E R : (1) Leave is granted to the defendant to defend the suit on the condition of deposit of an amount of Rs.1,68,000/- in this Court within the period of six weeks from today. (2) In the event of deposit of the amount as stipulated above, the suit shall stand transferred to the list of “Commercial Causes”. (3) The plaintiffs are entitled to withdraw the aforesaid amount unconditionally. (4) The defendant shall file his written statement within the period of eight weeks from the date of deposit. (5) If the defendant fails to deposit the amount as stated above in clause (1), in that event the suit shall stand decreed in terms of prayer clause (a). (R.V. MORE, J.)