: 1 : SJ-386-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 386 OF 2008 IN SUMMARY SUIT NO. 3798 OF 1996 M/s. Sai-Dev Constructions .. Plaintiffs v/s. The Municipal Employees Sai-Mangal Co-operative Housign Society Ltd. .. Defendants ......... Mr. G.V. Murty for the plaintiffs Mr. Amit H. Yadav for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 30th SEPTEMBER, 2010 P.C. : 1. Heard learned Counsel on both sides. The defendants a Co- operative Society entered into an agreement with the plaintiffs and called upon the plaintiffs to construct the building for the benefit of the members of the defendants on payment of consideration. Defendants claim that certain items of work were not completed by plaintiffs. Defendants gave to plaintiffs a cheque of Rs.1,50,000/- dated 30th August, 1993. The said cheque was dishonured for want of funds by dishonour memo dated 21st August, 1993. The cheque was placed for clearance again and by dishonour memo dated 5th October, 1993 : 2 : SJ-386-08=.sxw cheque was dishonoured as the payment was stopped by the defendants. The plaintiffs in the circumstances, instituted this suit on 4th October, 1996. This being a summary suit, plaintiffs took out Summons for Judgment No.98 of 1998. On the said Summons for Judgment, on 3rd August, 1999 an order was passed giving liberty to plaintiffs to withdraw the said summons for judgment and further liberty was granted to take out a fresh summons for judgment after the plaint is amended. For amendment of the plaint, the plaintiffs were required to take out chamber summons. After the passing of the order on 3rd August, 1999, plaintiffs took out chamber summons only in the year 2008. That chamber summons was granted on 15th July, 2008. The plaint came to be amended and thereafter, this Summons for Judgment has been taken out. 2. The suit is on the basis of dishonoured cheque for Rs.1,50,000/-. After hearing learned Counsel on both sides, I am inclined to observe that defendants had handed over this cheque to the plaintiffs by letter dated 30th August, 1993 as a part payment. Perusal of the said letter would go to show that defendants had clarified that balance sum of Rs. 1,00,000/- would be paid after certain items of work as mentioned in the said letter will be carried out. Defendants changed their stand subsequently and by letter dated 12th September, 1993, came out with : 3 : SJ-386-08=.sxw the stand that defendants have paid Rs. 44,632/- in excess of their liability. It is to be noted that defendants did not seek repayment of this amount even after the filing of the present suit. No proceedings are filed to recover this amount. A perusal of the correspondence relied upon by the defendants and in particular aforesaid two letters, would go to show that defendants knew that cheque was delivered to the plaintiffs, for job done by the plaintiffs and the plaintiffs were entitled to get that amount. To that extent defendants have no case on merits. 3. The stand of the defendants that the suit is filed beyond the period of limitation as understood under Article 35 of the Limitation Act, also cannot be accepted because the limitation would start from the date of dishonour i.e. 5th October, 1993. The question of institution of a suit by payee would come only when the cheque is dishonoured. To that extent, the argument is rejected. 4. It was argued that the plaintiffs have not given notice u/s. 164 of the Maharashtra Co-operative Societies Act. Judgment in the case of Suprabhat Co-operative Housing Society Ltd. & Anr. V/s. Span Builders & Anr. 2002(3), Mh.L.J. 837 was cited to say that the facts covered by the said judgment and facts in this suit are similar and, therefore, this plaint ought to be rejected and / or unconditional leave : 4 : SJ-386-08=.sxw be granted. I have perused the said judgment. The facts in the said case are totally different. In the said case, Suprabhat Co-op. Society was carrying on the business of purchase of land and allotting it to the members and getting houses constructed thereon. In the present case, certain persons had come together, formed a society and society had entered into agreement with the plaintifs calling upon the plaintiffs to construct flats to satisfy the needs of the members of the defendants. Hence, the agreement between plaintiffs and defendants does not touch the business of the society and as such the stand of the defendants that notice under Section 164 of the Maharashtra Co- operative Societies Act should have been given, cannot be accepted. 5. The defendants have raised the question of delay in taking out the summons for judgment. I have already indicated the circumstances under which this summons for judgment was taken out in the year 2008. The plaintiffs secured the order of withdrawal in the earlier summons in the year 1996 and the Court had permitted the plaintiffs to take out a fresh summons for judgment after the amendment is carried out. It is implicit that while the Court passed an order on 3rd August, 1998, Court expected the plaintiffs to rectify the defect in the suit as expeditiously as possible and by way of indulgence, the said order dated 3rd August, 1998 was passed. Things would have been different if : 5 : SJ-386-08=.sxw the plaintiff would have used the liberty granted and taken out the chamber summons for amendment of the plaint and then taken out the present summons for judgment soon after the amendment was permitted to be granted. The plaintiffs did not take out amendment application till 2008. No satisfactory explanation is coming forth as to why plaintiffs took out chamber summons in 2008 i.e. after 10 years from the date of order dated 3rd August, 1998. If this be so, there has been unexplained delay of more than 10 years in taking out chamber summons for amendment of the plaint. No doubt, after the amendment was granted, summons for judgment has been taken out. It is not as if that the amendment application was filed immediately in 1999 and the same was pending till 2008. Hence, it is clear that plaintiffs were indolent in the matter of taking out the chamber summons. If this be so, this delay is fetal. The scheme of Order 37 of CPC expects a person wanting to recover money to act as expeditiously as possible. It is true that the present summons for judgment was taken out soon after the amendment was granted but chamber summons was taken out after a period of 10 years. In my view, this fact would go against the interest of the plaintiffs and though the defendants have no case on merits, I am inclined to grant unconditional leave to defend on the question of delay in taking out the present summons for judgment. Accordingly, following order is passed to dispose of the summons for judgment. : 6 : SJ-386-08=.sxw ORDER (i) Defendants are granted unconditional leave to defend. Defendants to file written statement on or before 30th November, 2010 directly in the office. (ii) Defendants to supply to plaintiffs copy of the written statement within 15 days from the filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)