1 SJ332.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 332 OF 2008 IN SUMMARY SUIT NO. 819 OF 2008 Bharti K. Punamiya. ... Plaintiff. V/s. Popat B. Rambhia. ... Defendant. Mr. S.M. Sabrad for the Plaintiff. Mr. K.K. Jadhav for the Defendant. CORAM : R.Y. GANOO, J. DATED : 04th OCTOBER 2010. P.C. :- The Plaintiff has filed this Suit against the Defendant for recovery of Rs.6,28,500/- and for interest as set out in the particulars of the claim. According to the Plaintiff, the Defendant issued 3 cheques as set out in the plaint in the name of the Plaintiff and said cheques got dishonored for want of funds. The Plaintiff claims that he is entitle to recover monies due under the 3 cheques and has, therefore, taken out this Summons for Judgment as per Order XXXVII Rule 3. 2. The Defendant has filed affidavit in reply. The Defendant has come out with the defence thereby contending that the Defendant was interested in purchasing certain goods in an auction to be conducted by the Customs Department and had 2 SJ332.08.sxw appointed the Plaintiff as his representative and upon completion of the auction, the Plaintiff was to utilize the three cheques for payment of monies on behalf of the Defendant to the Customs Department and purchased the goods which were so auctioned. According to the Defendant, the cheques have been misused by the Plaintiff and the figures filled in in the cheques are done by the Plaintiff so as to institute this false Suit. 3. Learned Counsel for the Defendant had pointed out to me the letter dated 27th November 2007 by contending that the three cheques on the basis of which present Suit is filed were delivered by the Defendant to the Plaintiff on account of earlier cheques which got dishonored. Learned Counsel for the Defendant had submitted that if it is the case of the Plaintiff that loan was advanced by the Plaintiff to the Defendant, it was necessary for the Plaintiff to give particulars of said loan transaction. It was also argued by the learned Counsel that the transaction between the Plaintiff and the Defendant as claimed by the Plaintiff is a money lending transaction and that the Plaintiff has not produced licence under the Bombay Money Lending Act and therefore, the Defendant is entitled to un-conditional leave to defend. 4. The present Suit is filed on the basis of dishonored cheques. The said cheques are dishonored for want of funds. The stand of the Defendant that blank cheques were handed over to the Plaintiff for utilizing that in connection with the 3 SJ332.08.sxw auction conducted by the Customs Department cannot be accepted because if the said cheques were to be used for making payment to the Customs Department soon after the auction is over, the Defendant would have filled in the name of the payee and then allowed the Plaintiff to fill in the amount depending upon the auction and the bid. If the stand of the Defendant was that the cheques were to be used for making payment to the Customs Department, the name of the payee was certain and therefore, nothing prevented the Defendant to fill in the name of the payee who was certain and leave the figure blank to enable the Plaintiff to complete the transaction as per the steps taken in the auction. To that extent, the defence of the Defendant cannot be accepted. 5. The Plaintiff has come out with the case that these cheques were given to the Plaintiff on account of dishonor of earlier cheques. In my view, since the Suit is filed on the strength of three dishonored cheques which are annexed to the plaint, primary responsibility is of the Defendant to explain the circumstances under which the cheques went into the hands of the Plaintiff. The explanation given in the affidavit in reply and discussed above is found to be unsatisfactory. In view of this, the Defendant will have to be put to terms as regards depositing of monies and then the Defendant can be permitted to defend the Suit. The principal amount covered by the three cheques is Rs.6,28,500/- and hence, the Defendant will have to deposit Rs.6,00,000/- to defend the Suit. 4 SJ332.08.sxw 6. Hence, following order is passed to dispose of the Summons for Judgment :- (i) Upon the Defendant depositing in this Court a sum of Rs. 6,00,000/- in this Court on or before 22nd December 2010, the Defendant is granted leave to defend the Suit. (ii) The Defendant to file written statement directly in this Court on or before 13th January 2011. (iv) The Defendant to annex proof of deposit of monies alongwith the written statement. (v) The Defendant to serve copy of the written statement upon Advocate for the Plaintiff within one week from filing of the same. (vi) If the amount of Rs.6,00,000/- deposited in the Office, the Prothonotary and Senior Master to invest the same in a Nationalised Bank initially for a period of 2 years and continue to renew the same for like period till further orders. (vii) There shall be no order as to costs. (R.Y. GANOO, J.)