1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 390 OF 2007 IN SUMMARY SUIT NO. 1936 OF 2007 Romen Mohanlal Patel .. Plaintiff V/s Sunil Nath .. Defendant Mr. M.A. Shah for the plaintiff. Mr. Bhavesh Parmar for the defendant. CORAM : D.G. KARNIK, J. DATE : 1ST JULY 2009 P.C. : 1. Heard. 2. The plaintiff has filed the suit against the defendant for recovery of the sum of Rs.4,50,000/- and interest thereon. According to the plaintiff, he has advanced Rs.4,50,000/- to the defendant and for repayment of the same, the defendant issued three cheques of Rs.1,50,000/- each. However, the cheques were dishonoured when presented to the bank. The plaintiff has therefore filed this suit for recovery of principal sum of Rs.4,50,000/- and interest thereon. 2 3. By filing affidavit in reply, the defendant has contended that the plaintiff had not advanced any money to the defendant and the cheques were without consideration. He has further stated that he used to keep blank cheques signed by him in the office and one of his employees, namely Mr. Vijay Pathania, misused the said cheques and gave them to the plaintiff. Therefore, the defendant is not liable on the said cheques. 4. Under section 118 of the Negotiable Instruments Act, there is a presumption of consideration for every negotiable instrument. Therefore, the consideration for the cheques is presumed. As regards the contention of the defendant that he used to keep signed blank cheques, which have been misused by Mr. Pathania, the defendant has not established any connection between the plaintiff and Mr. Pathania. He has merely alleged collusion between the plaintiff and Mr. Pathania without placing any prima facie material on record of any connection between the plaintiff and Mr. Pathania. 5. It is worthy to note that the defendant has not prosecuted Mr. Pathania for the alleged misuse of the cheques nor filed a police complaint against him. In para 4 of the Affidavit in reply, the defendant has stated that some time in August 2004 he was informed by his bank about the dishonour of the cheques. This means that the defendant was aware about the issuance of cheques in August 2004 itself, still the defendant did not take any action thereafter. He did not issue any notice to the plaintiff asking him to return 3 the said cheques on the ground that they were wrongly delivered to him by Mr. Pathania as alleged by him. 6. In the circumstances, the defence raised by the defendant is merely a moonshine defence and has no merit even prima facie. The defendant is therefore not entitled to unconditional leave. However, instead of passing a decree forthwith, only by way of a concession, I am inclined to grant the defendant conditional leave subject to depositing the principal amount in this Court. Hence, I pass the following order: (a) The defendant is granted conditional leave to defend the suit subject to his depositing in the Court the principal amount of Rs.4,50,000/- in this Court within 8 weeks. On such deposit, the plaintiff shall be entitled to withdraw the same by furnishing security to the satisfaction of the Prothonotary & Senior Master. The suit shall stand transferred to the list of commercial causes. The defendant shall file the written statement within 14 weeks. (b) In the event the defendant fails to deposit the principal amount within the stipulated time, the plaintiff shall have liberty to apply. (c) The summons for judgment is disposed of. (D.G. KARNIK, J.)