1 SJ.412/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 412 OF 2009 IN SUMMARY SUIT NO. 1854 OF 2009 Gemini Engi-Fab Ltd. ..Plaintiff. Vs. Kishor R Gatthani ..Defendant. ---- Mr. N.S. Das, for the Plaintiff. Mr. S. Redekar i/b R.P. Sathe, for the defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 13th SEPTEMBER 2010. P.C. Heard learned Counsel appearing for the plaintiff and the defendant. 2] The suit is filed under Order XXXVII of the Code of Civil Procedure, 1908 on dishonoured Cheques. 3] The cheques were issued by the defendant in favour of the plaintiff as plaintiff entrusted job work to the defendant. That was of registration of the plaintiff with "Engineers India Ltd." He was paid a sum of Rs.7 Lacs but, he could not complete it, and therefore, he sought to return the sum by forwarding two cheques in the sum of Rs.2 Lacs and Rs.5 lacs which on presentation came to be dishonoured by the Bankers 2 SJ.412/2009 Thereafter, the legal notice was issued and once again the parties have executed Memorandum of Understanding under which the liability was acknowledged. The cheques presented to the Bank but it was dishonoured by the Banker with remark "Insufficient Funds". It is in such circumstances, further notice was issued and reply was filed by the defendant denying liability. 4] From the averments of the plaint, it is clear that the suit falls within the purview of Order XXXVII Rule 2 of the Code of Civil Procedure, 1908. The suit claim is within limitation and as far as territorial jurisdiction of this Court is concerned, from the averments in para 7, it is clear that this Court has territorial jurisdiction to entertain and try the suit. 5] Upon writ of summons being served, the defendant entered appearance through his Advocate, therefore, the plaintiff has filed the instant Summons for Judgment and stated that the appearance has been filed only to delay the payment, and that the defendant has no defence to the claim. 6] In the affidavit in reply the defendant states that he had taken up the matter with EIL to carry out survey which indicated that there are certain compliances to be done or else the registration will not be granted. 3 SJ.412/2009 The defendant has stated that the plaintiff has suppressed this fact and it is not because of fault on his part that the registration was not granted. However, the affidavit in reply does not dispute the execution of the agreement acknowledging the liability and issuance of cheques in favour of the plaintiff. There is no explanation forthcoming as to why the cheques were forwarded despite such shortcomings and details being noted by “Engineers India Limited”. 7] Having perused the plaint and annexures thereto, so also affidavit in reply, I am in agreement with the plaintiff’s Counsel that the appearance has been filed only to delay the repayment of sums claimed by the plaintiff. This is nothing but an afterthought on the part of the defendant. The affidavit does not disclose any defence as far as execution of the Memorandum of Understanding nor it disputes the liability to pay the sums. There is no denial of the fact that all cheques were forwarded to the Bank were dishonoured. In such circumstances, I am of view that the plaintiff is entitled to a decree as the defence is false, frivolous and vexatious. There will be a decree as prayed. The original documents listed and compiled are taken on record and marked ‘X’ for identification. Advocate’s costs and Court fees are to be computed as per rules. A decree be drawn accordingly. 4 SJ.412/2009 8] The defendant who is pressent in Court states that he is ready and willing to make payment of the decretal amount. However, he seeks one year’s time to repay the sums on account of his heart ailment. Considering this request sympathetically, I am of the view that the rights can be balanced if it is directed that the decree shall not be executed for a period of six months from today. If during the said period the amount is repaid, Registry to mark the decree as satisfied, after duly intimated in that behalf. In default, the plaintiff-decree holder can execute decree in accordance with law. 9] The Summons for Judgment is allowed in the aforesaid terms. [S.C. DHARMADHIKARI, J.]