1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINRY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 64 OF 2009 IN SUMMARY SUIT NO. 2694 OF 2008 ETC Networks Ltd. .... Plaintiffs. Vs. Update Advertising & Marketing Pvt.Ltd. .... Defendants. Mr. Anoshak Daver alongwith Naser Ali Rizwi i/by M/s. Thakore Jariwala & Associates for the plaintiffs. Mr. A.C.Mahimkar for the defendants. CORAM : A.A. SAYED, J. DATE : JUNE 30, 2009 P.C. 1. The above Summons for Judgment is taken out by the plaintiffs with a prayer that a judgment be entered in their favour in the suit against the Defendants for Rs. 6,26,335/- and for interest and costs. 2. It is the case of the plaintiffs, that they are in business of operating Satellite Television Channels known as "etc" and "etc Channel Punjabi". The defendants issued various release orders to telecast their programme on the plaintiffs' channel and the defendant owes them Rs. 16,73,285.59 ps. as 2 per the Bills/Invoices raised by the plaintiffs on the defendants. The defendants did not make payments, therefore, the plaintiffs addressed Advocate's notice dated 2nd January, 2007 and further Advocate's notice dated 24th February, 2007 calling upon the defendants to make payments. According to the plaintiffs the defendants have duly received the letter dated 24.02.2007, but failed to reply to the same or make payments. 3. The plaintiffs thereafter filed a winding-up Petition in this Court, being Company Petition No.658 of 2007 under Sections 433 and 434 of the Companies Act, 1956. After filing the said petition, the defendants paid a sum of Rs. 10 lac to the plaintiffs in July, 2007. It is further the case of the plaintiffs that the petition came up for admission and this Court by its order dated 27th June, 2008 directed the defendant to pay to the plaintiffs a sum of Rs. 2 lac within a period of two weeks from the date of the order. Plaintiffs were also directed to file suit against the defendants within four weeks for recovery of balance amount with interest. 4. Thus, according to the plaintiffs out of the said amount of Rs. 16,72,284.59 ps. a sum of Rs. 12 lac has been received by the plaintiffs and their claim in the present suit is for the balance amount of Rs. 4,72,015/- alongwith interest @ 12 % per annum from the date of filing of the suit till payment and/or realization. 5. The case of the defendants, on the other hand is that they had paid to the plaintiffs a sum of Rs. 10,00,000/- on 5th July, 2001 as inter corporate deposit and since the Plaintiffs were unable to return the same due to financial problems they requested the defendants to consume airtime on 3 their channel and recover the dues. According to the Defendants, the Plaintiffs in July, 2002 made part payment of Rs. 4,00,000/- and the balance amount of Rs. 4,72,015.00 remained unpaid. It is further stated in the reply of the defendants that some time in the year 2000, the plaintiffs had passed journal entries wrongfully debiting the Defendants with a sum of Rs. 4,72,000.00 towards the dues payable to the plaintiffs by one M/s. Multimedia Informatics Pvt.Ltd. According to the defendants, the said M/s. Multimedia Informatics Pvt. Ltd. has no business relations with the defendants and are a separate entity. 6. According to the defendants, they paid a further sum of Rs. 10,00,000/- in July, 2007 and offered to pay balance amount of Rs. 2,01,259.59. However, the plaintiffs refused to reverse the wrong debit entry. Pursuant to the order dated 27th June, 2008 in Company Petition No. 685 of 2007 they have paid sum of Rs. 2,00,000/- and complied with the order and there is nothing due and payable by the defendants to the plaintiffs. 7. The plaintiffs have admitted that an amount of Rs. 10 lacs was paid by the defendants to them on 5th July, 2001, however, according to the Plaintiffs, the said amount of Rs. 10 lac was repaid by the plaintiffs to the defendants in the manner set out in paragraph 14 of the plaint. 8. I have considered the rival contentions of the parties. In respect of the transactions of the year 2001-2002 nothing is produced on record to show that any proceedings are filed for recovery of these amounts by the defendants against the Plaintiffs if such amounts were infact due to the 4 Defendants. The references to the transactions of 2001-02 are therefore of no consequence and are in any event time barred. If any amounts were to be adjusted, as suggested by the defendants, it is unlikely that the defendants would have paid a sum of Rs. 10 lacs to the plaintiffs in July, 2007 and therefore this contention of the defendants clearly appears to be an afterthought. The claim is based on Invoices which are within limitation period and therefore the plea of limitation raised by the Defendants is misconceived and cannot be accepted. The receipt of Invoices is not disputed. It is further noted that the plaintiff's Advocate's notice, though received, has not been replied to by the defendants. In the circumstances, the defendants have not made out any substantial defence to the suit. However, in the facts of the case, I am not inclined to shut out the defendants completely from contesting the suit. 9. Taking an overall view of the matter, in my opinion, the following order would meet the end of justice: (i) Leave to defend the suit is granted to the defendants conditional upon the defendants depositing in this court 50% of the principal sum of Rs. 4,72,015/- within 8 weeks from today. (ii) In the event the defendants deposit the aforesaid amount, the suit to stand transfered to the list of commercial causes. The defendants to file their written statement within 30 days from the date of deposit. Affidavit of documents to be filed within 8 weeks thereeafter. Discovery and Inspection within 8 weeks thereafter. 5 (iii) Upon the aforesaid deposit being made, the Prothonotary and Senior Master to invest the amount in any Nationalized Bank and to renew the same from time to time. (iv) In the event the defendants fail to deposit the aforesaid amount, liberty to the Plaintiffs to apply for further orders. 10. Summons for Judgment stands disposed of accordingly. [A.A.SAYED, J.]