1 SJ365.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 365 OF 2008 IN SUMMARY SUIT NO. 2246 OF 2008 Vinod Sanganeria. ... Plaintiff. V/s. Nirav Mehta. ... Defendant. Mr. M.K. Jain for the Plaintiff. None for the Defendant. CORAM : R.Y. GANOO, J. DATED : 29th SEPTEMBER 2010. P.C. :- Heard learned Counsel for the Plaintiff. The Defendant has not filed affidavit in reply. Even though the Defendant has not filed affidavit in reply, it is necessary for the Court to check up whether present Suit which instituted as Summary Suit was rightly filed as a Summary Suit and it is from that angle I have heard learned Counsel for the Plaintiff as also I have heard learned Counsel for the Plaintiff on merits. 2. Learned Counsel for the Plaintiff made available to the Court agreement dated 15th September 2004 titled as Agreement/Memorandum of Understanding executed between the Plaintiff and the Defendant. A perusal of the said 2 SJ365.08.sxw agreement would go to show that it was executed for performing a joint venture activity and clause (6) of the said agreement shows that the profit and loss account statement will be prepared and profit would be divided equally among the parties. The financial support in the joint venture activity was to be provided by the Plaintiff. 3. Learned Counsel for the Plaintiff drew my attention to letter dated 12th June 2006 sent by the Defendant to the Plaintiff and he submitted that the present Suit is filed on the strength of this letter dated 12th June 2006. A perusal of this letter would go to show that a cheque for Rs.1,37,000 and odd amount issued by the client of the Plaintiff as well as the Defendant came to be credited to the personal account of the Defendant and the Defendant in his letter dated 12th June 2006 has in a way admitted that he is liable to account for the said amount. At the same time, the Plaintiff should bare with the situation for some time. Even there is a readiness and willingness to pay the interest on the outstanding amount as per the Memorandum of Understanding. 4. Learned Counsel for the Plaintiff submitted that this Suit for recovery of Rs.1,37,015/- as and by way of principal and interest is filed on the strength of this letter. He submitted that as there is no affidavit in reply, the Court should hold that the Summary Suit on the strength of this letter maintainable and the Court should make the Summons for Judgment absolute. 3 SJ365.08.sxw 5. After having considered the text of the agreement dated 15th September 2004 and text of letter dated 12th June 2006, I am inclined to observe that institution of the present Suit as Summary Suit is not maintainable. It is true that by letter dated 12th June 2006, the Defendant has admitted that the cheque for Rs.1,37,000 and odd has been wrongly credited to his personal account. It will be equally true that the Defendant would be answerable to the Plaintiff in regard to this figure. However, the Plaintiff is not entitled to get full amount as the sum of Rs.1,37,000/- and odd was received in connection with the business of the joint venture which was entered into by and between the Plaintiff. 6. In my view, letter dated 12th June 2006 cannot be read in isolation. It will have to be read in the light of joint venture agreement and if that is so, any amount received will have to be shared in terms of the joint venture agreement. In my view, the activity carried out by the Plaintiff and the Defendant in the nature of joint venture agreement was practically like a partnership firm. Though the agreement is not titled as partnership deed, in my view, the Suit should not have been filed as a Summary Suit. If this be so, the Defendant is entitled to unconditional leave to defend. 7. Hence, following order is passed to dispose of the Summons for Judgment :- 4 SJ365.08.sxw (i) Unconditional leave is granted to the Defendant to defend. (ii) The Defendant to filed written statement directly in the Office on or before 19th November 2010. (iii) The Defendant to inform filing of such written statement to the Plaintiff. (iv) There shall be no order as to costs. (v) Suit to come up in usual course. 8. Original documents made available by the learned Counsel for the Plaintiff in the course of hearing are returned to him. (R.Y. GANOO, J.)