IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3068 OF 2007 IN SUIT NO. 3437 OF 2005 The National Small Industries.... ...... ......Plaintiff. V/s Dilip Damoda Patil.... ...... ......Defendant. Ms.U.K.Shrivastava i/by M/s.Consulta Juris, Adv. for the plaintiff. Mr.V.C.Ghosalkar, Adv. for the defendant. CORAM: A.P.DESHPANDE, J. 30.6.08 PC: For purchase of machinery the plaintiff advanced money and hire purchase agreement was entered into between the parties. The defendant was in default of payment of installment and had requested the plaintiff to permit one time settlement of the account. The plaintiff responded favourably and by its letter dated 13.12.01 informed the defendant that the proposal for one time settlement moved by the defendant was placed before the Competent Authority and the Competent Authority was pleased to grant one time settlement on payment of Rs.20,55,007/-. The defendant acting on the said communication dated 13.12.01 did deposit the said sum of Rs.20,55,007/- in two installments the first instalment was of Rs.9 1 lacs and the second instalment was of Rs.11,44,007/- paid on 1.1.2002. The payment of one time settlement was accepted by the plaintiff towards full and final settlement of the account and the receipt came to be passed in favour of the defendant which is filed at Ex.2 on record page 30 which is not in dispute. The said receipt recites the receipt of the amount towards full and final settlement of dues. At a later point of time plaintiff instituted the present suit for recovery of sum of Rs.21,95,883/25 so also the interest thereon being the amount alleged to be due and payable by the defendant having regard to the entire claim of the plaintiff prior to one time settlement. The case of the plaintiff is that time was the essence of the one time settlement and it was expected that the defendants would forthwith pay the amount as spelt out in the one time settlement. However there was delay of about 10/11 months and thus the plaintiff is entitled to recover entire amount and cannot be made to close the account. Perusal of the letter of one time settlement dated 13.12.01 goes to indicate that the amount of one time settlement was fixed as on 30.9.01 and in the event of delayed payment the said sum was to attract interest. In view of the said stipulation in the communication dated 13.12.01 the plaintiff's claim in the suit prima facie does not appears to be justifiable. The plaintiff has failed to make out prima facie case for seeking an order of appointment of Court Receiver in relation to machinery in question. The balance of convenience lies in favour of the defendants. This being the money suit declining the 2 prayer for appointment of the Court Receiver for taking possession of the machinery would not cause any irreparable loss to the plaintiff. Having regard to the totality of facts and circumstances no case is made out and hence notice of motion stands dismissed. 3