1 sj131-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.131 of 2009 in Summary Suit No. 521 of 2009 Rajesh G. Rathi .. Plaintiff v/s. M/s. Valfin Financial Services Pvt. Ltd. & Ors. ..Defendants Mr.Vijay Pandey with Ms. Asha Tamhankar i/b.A.A.Khan for the Plaintiff. Mr.K.R.Shriram for the Defendant CORAM : R.Y.GANOO, J. DATED : 9th August , 2010 P.C. : 1. The present suit is filed by the plaintiff for recovery of monies as set out in the particulars of claim on the ground that defendant no.1 issued cheque in favour of the plaintiff in the sum of Rs.30 lakhs being cheque dated 22.10.2007 and the said cheque came to be dishonoured on presentation on the ground the account is closed. According to plaintiff, the cause of action arose to the plaintiff on account of dishonour of cheque on 27.11.2007. 2 sj131-09.sxw 2. At the outset, it is required to be mentioned that the cheque is signed by the Director on behalf of defendant no.1, a private limited company and therefore the suit instituted against the defendant nos.2 and 3 being the Directors of the company is not maintainable. The logdement of the suit against the defendant Nos.2 and 3 is prima facie improper as the cheque came to be issued by the company. Hence the defendant nos.2 and 3, who are the Directors are entitled to unconditional leave to defend. Appropriate order shall be passed to that effect. 3. So far as the merits of the case between the plaintiff and the defendant no.1 company, it is noticed that the defendant no.1 company had agreed to buy back certain quantity of shares for Rs. 30 lakhs. The suit cheque was given to effect payment of said Rs.30 Lakhs. 4. According to Defendant No.1 Plaintiff was entitled to receive Rs.30 Lakhs on fulfillment of certain preconditions set out in letter dated 2.4.2007 sent by Mr. Biyani defendant No.2, Director of Defendant No.1 to Mr.B.K.Jajuji, a person who acted as mediator between the 3 sj131-09.sxw plaintiff on one hand and the defendant no.1 on the other. 5. It is required to be noted that the case of the defendant no.1 before this court proceeded on the footing that the plaintiff was entitled to deposit the cheque in the bank only after certain pre-conditions were fulfilled. According to the defendant no.1, as those pre conditions were not fulfilled, the plaintiff was not entitled to receive the said payment. It is noticed that one of the condition being important condition was defendant no.1 was to receive money from the National Stock Exchange. It has been the stand of the defendant no.1 that the plaintiff created obstacles by addressing letters to National Stock Exchange and tried to see that the monies are not received by defendant no.1 from National Stock Exchange and despite knowing this that the conditions are not fulfilled, plaintiff deposited the cheque with the bank. 6. It is a matter of evidence viz. Whether certain preconditions were required to be fulfilled and the payment was not due till those conditions are fulfilled. The court cannot over rule the important point which is in favour of the plaintiff i.e. the reason for dishonour 4 sj131-09.sxw of suit cheque. It is to be noted that the cheque is dishonoured on account of closure of the account. The court is informed that the account came to be closed by letter dated 13.11.2007 on the basis of resolution passed by defendant no.1 in accordance with the rules of business of defendant no.1. It is required to be noted that by 21.11.2007, defendant no.1 had come to know through said Jajuji that the cheque is already released in favour of the plaintiff. If the account came to be closed on 13.11.2007 for whatever reasons, it was necessary for the defendant no.1 to inform the plaintiff that account is closed and the cheque canot be deposited in the bank. It was necessary for the defendant no.1 to inform the plaintiff that the account is closed and preconditions are not fulfilled and as such plaintiff is not entitled to said amount. Nothing has been done in this behalf. 7. It is to be noted that the suit is filed for recovery of monies on the basis of dishonour of a cheque. The explanation given by defendant no.1 is not sufficient to allow the defendant no.1 to defend the suit unconditionally. Defendant No.1 will have to be put to terms in the nature of deposit of the monies. Considering the fact that the suit 5 sj131-09.sxw cheque was for Rs.30 lakhs, I am inclined to direct Defendant No.1 to deposit in this Court Rs.30 lakhs to defend the suit. 8. It was argued by the learned Counsel for defendant no.1 that the prayer set out in the plaint is defective in as much as defendant no.1 has asked for future interest not on the principal amount of Rs.30 lakhs but on the amount which is equivalent to principal sum of money plus interest. This argument cannot be considered for the purpose of giving unconditional leave to defend the suit. Ultimately if the plaintiff succeeds, the plaintiff would be entitled to recover interest as may be ordered by the court. 9. In view of the aforesaid, following order is passed to dispose of the summons for judgment. ORDER i) Defendant nos.2 and 3 are granted unconditional leave to defend the suit. ii) Upon the defendant no.1 depositing a sum of Rs.30 lakhs, on 6 sj131-09.sxw or before 30.9.2010 the defendant no.1 is permitted to defend the suit. There shall be no order as to costs. iii) Suit stands adjourned to 11.10.2010 for filing written statement. Written statement to be filed directly in the court by defendant nos.1. 2 and 3 on 11.10.2010. [R.Y.GANOO, J.]