1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.961 OF 2010 IN SUMMARY SUIT NO. 2121 OF 2008 M/s. Otarmal Kantilal & Co., ...Plaintiffs Vs. P. Vijayan S/o.P. Gangadhara Menon & Anr. ...Defendants Mr. Tushar Goradia, Advocate for Plaintiffs Mr. Ravindra A. Lokhande, Advocate for Defendants CORAM : SMT. ROSHAN DALVI, J. DATED : 21 ST JUNE, 2010 P.C. : 1. The Writ of Summons in the Suit came to be admittedly served upon the Defendants. Defendant No.1 is stated to be not keeping good health at that time. Defendant No.1 is stated to have approached the Plaintiffs to settle the dispute in the Suit. The dispute was relating to the amount payable under the Bill of Exchange upon which the Suit was filed. 2. The Plaint was filed on 21st January 2008 upon a bill of exchange executed by Defendants for Rs.80,000/- in favour of Plaintiffs. 3. It is the case of Defendants that they made an offer to settle the dispute at Rs.20,000/- and issued cheque for Rs.15,000/- on 30th August 2008 2 pending the Suit. This was to be a one time settlement. The Defendants promised to pay a balance amount of Rs.5000/- when the Summary Suit was withdrawn. The agreement is not in writing. The Suit came to be prosecuted. The Defendant failed to appear despite being served with Writ of Summons. Explanation relating to nonappearance has not been explained except that Defendant No.1 “was not keeping good health” and not even attending his own office. 4. On merits it is the case of Defendant No.1 that the loan taken by the Defendant No.1 was Rs.20,000/- and not Rs.80,000/-. The bill of exchange upon which the Suit is filed is date 31st May 2006 for Rs.80,000/- drawn by Defendant No.1 and accepted by Defendant No.2. If the loan was for Rs. 20,000/- why and how the bill of exchange for Rs.80,000/- came to be executed is not shown. There is no defence on merits shown except that Rs.15,000/- paid by way of cheque has not been accounted for in the Suit. 5. That part payment is made pending the Suit. Credit has been given for that payment made in the Execution Proceedings. 6. The Defendants must show special circumstances upon which the decree has to be set aside under Order 37 Rule 4 of the C.P.C. Special circumstances are not shown. 7. Notice of Motion is dismissed. The execution shall proceed. (SMT. ROSHAN DALVI, J.)