1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINRY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 271 OF 2008 IN SUMMARY SUIT NO. 1174 OF 2008 Aishwarya Publications Pvt.Ltd. ... Plaintiffs. Versus Live Media Agency & Anr. ... Defendants. Ms. Mamta Saadh alongwith Jitendra Ranawat i/by M/s. Banatwala & Co. for the Plaintiffs. Mr. Yashpal Jain for the Defendants. CORAM : A.A. SAYED, J. DATE : JUNE 24, 2009. P.C. 1. The above Summons for Judgment is taken out by the plaintiffs to enter judgment in their favour for a sum of Rs. 1, 79,580/- being the principal amount and Rs. 5387.38 being the interest on the said principal amount, aggregating to Rs. 1,84,967.38 ps. and for further interest @ 18% per annum from the date of institution of the suit till the realization of the decretal amount. 2. The case of the plaintiffs is that they are a Publishing House publishing Magazines and News Papers being "Assignment Abroad Times" and "Vacancies for You" from Mumbai and distributing the same through 2 their Distribution Network/Agents throughout India. The defendant No.1 is the Distributor Agent for the Chennai Sector of the said two News Papers. The defendant No.2 is the proprietor of defendant No.1. The further case of the plaintiffs is that they used to draw up their bills at the end of each month for the supply of consignment forwarded to the defendants. The said bills also included credit notes for the unsold copies and after due credit given, the bills for the balance amount were sent to the defendants for payment. Accordingly, the plaintiffs raised their bills for a period from March to October, 2007. The defendant No.2 issued 12 cheques, out of which only five cheques were cleared and rest were dishonored for insufficient funds in the defendants account. The defendant No.2 thereafter requested to the plaintiffs to redeposit the cheques and accordingly, the plaintiffs redeposited the cheques and the same came to be dishonoured again. Thereafter the defendants issued the Demand Draft in a sum of Rs. 40,000/- and assured that accounts will be settled from April to August, 2007 and issued further seven cheques for an amount of Rs. 60,000/- and promised to send the balance by next week. From the said seven cheques, an amount aggregating Rs. 30,000/- was cleared and cheques amounting to Rs. 20,000/- were dishonoured. One cheque of Rs.10,000/- being not signed by the defendants, was returned by the plaintiffs to the defendants for their signature which cheque was not returned by the defendants. Since the defendants failed to pay the balance amount, the plaintiffs discontinued business relationship with the plaintiffs from 1st November, 2007. The plaintiffs have also annexed letter dated 14.09.2007 (Exhibit "C" of the plaint) of the defendants to show that the defendants have acknowledged part of their liability. The plaintiffs, through their advocates letter dated 12.01.2008, have called upon the defendants to pay Rs. 1,79,580/- 3 alongwith interest @ 18% per annum. However, the defendants failed and neglected to pay the same and hence the above suit and the Summons for Judgment. 3. The defendants have opposed the Summons for Judgment by filing reply. The case of the defendants in the reply is that the suit does not fall within the purview of Order 37 Rule 2 of the Code of Civil Procedure and the suit is based on Statement of Account made by the plaintiffs and therefore, the same is not maintainable as a Summary Suit. It is further stated in the reply that the suit is not based on any admission or written contract or otherwise so as to term it as Summary Suit. The defendants have denied their liability and stated that the Statement of Account is a got up document and the plaintiffs have not given credit for the unsold papers to the tune of Rs. 75,000/-. The defendants have also not admitted the receipt of the plaintiff's advocate's letter dated 12.01.2008. The defendants have further stated that the cheques on which the suit is based are not annexed to the plaint. The defendants have thus sought unconditional leave to defend the suit. The plaintiffs have filed rejoinder denying the contentions of the defendants and have stated that the defendant No.2 has even denied the letter dated 14.09.2007 written in his own handwriting in the affidavit-in- reply. The plaintiffs have also annexed copy of the acknowledgment evidencing the fact of receipt of the plaintiff's advocate's letter dated 12.1.2008 by the defendants. 4. I have heard the learned Counsel for the parties and perused material on record. 4 5. It cannot be disputed that the defendants were in financial difficulty and the defendants have clearly admitted this fact in correspondence. The cheques issued by the defendants were also repeatedly dishonoured. The defendants have denied receipt of plaintiff's advocate's letter dated 12.1.2008. The relevant portion in the affidavit in reply reads thus :- "I do not admit that the plaintiffs by their advocate's letter dated 12.1.2008 addressed to me called upon me to pay the said amount of Rs. 1,79,580 standing at the foot of the account of the plaintiffs' book of accounts as alleged. I so that no proof is annexed by the plaintiffs to prove that the said letter was received by me." In the rejoinder, however, the plaintiffs have annexed copy of the acknowledgment with the rubber stamp and signature of the defendants which belies the above statement in regard to the receipt of the advocate's letter. The advocate's letter dated 12.1.2008 which is received by the defendants on 21.1.2008 has not been replied to by the defendants. 6. The learned Counsel for the defendants has sought to argue that the suit is based on dishonoured cheques and the cheques are not annexed to the plaint. The defendants, however, in my view, cannot take undue advantage of the averments in the plaint that the suit is filed on the basis of dishonoured cheques and no copies of the cheques have been annexed to the plaint, in the teeth of the clear admission of the defendants in their letter dated 14.9.2007 (Exhibit "C" to the plaint), which is in the handwriting of the defendant No.2, admitting Rs. 1,23,447.63 ps. was due and payable to the plaintiffs and under which letter, cheques amounting to Rs. 60,000/- 5 were forwarded to the plaintiffs. It is further stated in the said letter by the defendants that the balance amount would be sent by next week. Even assuming that the cheques amounting to Rs. 60,000/- were honoured even then, a balance amount of Rs. 63,447.63 ps. remained due and payable by the defendants to the plaintiffs, on the defendants' own showing. Thus, this would amount to a clear acknowledgment of debt payable by the defendants to the plaintiffs and the defendant No. 2, cannot run away from the clear admission made by him in his own handwritten letter dated 14.9.2007. The averments in the reply of the defendant, in paragraph 7 in respect of the letter dated 14.9.2007, ( Exhibit "C" to the plaint) are curious and read as under :- " I do not admit Exhibit "C" annexed to the affidavit. The said Exhibit appears to be fabricated and made up document. All the Exhibits are merely typed copies and no reliance can be placed on the same." It is to be noted that the letter dated 14.9.2007 (Exhibit "C" to the plaint) is a copy of handwritten letter of the defendant No.1 and not merely typed copy as suggested by the defendants. 7. In so far as the letter dated 18.01.2008, annexed by the defendants to their affidavit-in-reply is concerned, it is stated therein that a sum of Rs. 75,000/- has not been accounted for. The plaintiffs have denied receipt of this letter. This claim of Rs. 75,000/- by the defendant appears to be an afterthought inasmuch as it would have otherwise been reflected in the letter dated 14.09.2007 of the defendants. The plaintiffs have denied 6 receipt of this letter. Pertinently, there is no proof of acknowledgment of this letter, dated 18.01.2008 which is annexed to the reply. 8. The learned Counsel for the defendants has relied upon the case of JYOTSNA K. VALIA VS. T.S.PAREKH AND CO. reported in 2007(3) BOM. C.R. 772 to submit that Summary Suit would not lie on a settled account which is not confirmed by the defendants. The learned Counsel has also relied upon the decision of Single Judge of Andhra Pradesh High Court in the case of PRAGATHI BEARINGS, SECUNDERABAD VS. LAXMI DURGA GRANITES LTD., HYDERABAD reported in 2000(5) ALD 754, to submit that in absence of specific averments made in the plaint that the claim was based on a written contract, a suit under Order 37 is not maintainable. The learned Counsel further relied upon the judgment of learned Single Judge of Calcutta High Court in case of TARACHAND PROTAPMAL VS. TAMIJUDDIN SHEIKH, reported in AIR 1935 CAL 658 to submit that if the case is based on a cause of action which is independent and different than what is pleaded in the plaint, without amendment the plaint, the court cannot entertain the cause of action which has not been pleaded. The learned Counsel submitted that in the present case, the suit is based on returned cheques and not a written contract, which is a different cause of action. 9. In my view, the above rulings would not help the defendants' case inasmuch as in the present case the defendant No.2 has clearly admitted his liability in his own handwriting vide his letter dated 14.09.2007 being Exhibit "C" to the plaint, to the extent as mentioned above. The defendants cannot escape from this fact, merely by taking up 7 technical pleas in respect of some shortcomings in the plaint. 10. The Full Bench Judgment of our Court in the case of SICON LTD VS. PRASHANT S. TANNA reported in 2004 AIR (Bom.), has held that it is open for the courts to grant conditional leave or pass a decree in respect of a part of the claim which is properly quantified and unconditional leave in respect of rest of the claim. In the circumstances, I find that insofar as the part of the claim, as discussed in paragraph No. 6 above is concerned, in view of the clear acknowledgment of liability by the defendants, no substantial defence is made out by the defendants and insofar as balance claim (as per particulars of claim) is concerned, the defendants have made out a case for conditional leave. 11. In view of the aforesaid discussion, in my view, the following order would meet the ends of justice:- O R D E R (i) Leave to defend is granted to the defendants in respect of a sum of Rs. 63,447.63/- conditional upon the defendants depositing in this court a sum of Rs. 50,000/- within 8 weeks from today. (ii) In respect of the balance claim, the defendants are entitled to unconditional leave. (iii) It is clarified that the consequences of non-deposit of the amount of Rs. 50,000/- shall not be upon the amount in respect whereof unconditional leave has been granted. (iv) The suit to stand transferred to the list of commercial causes. 8 Defendants to file the written statement within 30 days. Affidavit of documents within 8 weeks. Discovery and Inspection of the documents, within 8 weeks thereafter. (v) On deposit being made as aforesaid, the Prothonotary and Senior Master to invest the same in fixed deposit of any Nationalized Bank initially for a period of three years and thereafter for like period of three years each. (vi) In the event the defendants fail to deposit the aforesaid amount, liberty to the Plaintiffs to apply for further orders. 12. The Summons for Judgment to stand disposed of accordingly. [A.A.SAYED, J.]