1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1008 OF 2006 IN SUMMARY SUIT NO. 3810 OF 2001 Smt. Rehana Khan. ... Plaintiff. V/s. Shri Raj @ Rajesh S. Nanavati. ... Defendant. Mr. S.R. Saudagar for the Plaintiff. Mr. A. A. Joshi i/b. M.V. Khandekar for the Defendant. CORAM : S.C. DHARMADHIKARI, J. 26TH NOVEMBER 2008. P.C. :- This is a Notice of Motion to set aside a decree passed in the Summary Suit. 2. The Defendant has in the affidavit in support contended that the ex-parte decree was passed on 29th September 2003. He became aware of the same when the Bailiff from the Sherrif's Office visited the residential premises and attached the same on 22nd June 2 2005 in execution of the same. 3. The attached property is the flat of the mother of the Defendant. 4. It is contended that the papers were handed over after the Suit Summons was received through an Advocate, who filed his appearance but thereafer, did not take steps to defend the Suit. Although, the Advocate was served with the Summons for Judgment and the affidavit in support, he sought no instructions from the Defendant and no affidavit in reply was filed. It is, in these circumstances that the Suit was decreed by this Court. 5. Mr. Joshi appearing for the Defendant contended that special circumstances to set aside the ex-parte decree are made out inasmuch as the Suit is filed on a dishonoured cheque. The cheque is for Rs.60,00,000/- and a copy thereof is annexed as annexure `C' to the plaint. However, there was no consideration for the said cheque. The cheque was handed over to the Plaintiff after the 3 Plaintiff had agreed to advance certain money. The cheque was given as a security for the said advance/loan. Therefore, there is no transaction of any loan much less a friendly loan. Therefore, the presumption under Section 118 of the Negotiable Instruments Act stands rebutted, prima-facie. 6. Further, he submits that the Defendant is supposed to be a signatory to the documents which are annexed as annexures 'A' and 'B'. First is a partnership deed and the partners are shown as the Plaintiff and the Defendant. However, the Stamp Paper is purchased in the name of one Mr. Tiwari in the year 2000 and the blank stamp paper is utilized to set out an alleged transaction and thereafter, the signatures of the Plaintiff and the Defendant appear at the foot thereof. Similar is the case with the Deed of Dissolution (Exhibit B) to the plaint. Inviting my attention to the Advocate's Notice, he contends that the Advocate's Notice is vague inasmuch as the cheque is allegedly forwarded for repaying a friendly loan/capital account. This means that there is grave suspicion with regard to the consideration and hence, the Suit is not maintainable as a Summary Suit. There 4 are various triable issues inasmuch as a criminal complaint has already filed against the Plaintiff for extortion and the Magistrate concerned has directed investigation under Section 156(3) of Cr.P.C. In these circumstances, it is a fit case where the ex-parte decree should be set aside and unconditional leave to defend the Suit claim be granted. 7. On the other hand, Mr. Saudagar appearing for the Plaintiff would urge that the Suit is based with dishonoured cheque. The cheque is admittedly dishonoured, on presentation, by the Banker. There were several cheques handed in and each one of them is dishonoured. A no stage much else in reply to the Advocate's Notice the Defendant has raised all these contentions including that there was no agreement of partnership or dissolution therof. Mr. Saudagar submits that it is pertinent to note that the Defendant admits his signatures on the annexures to the plaint as also to the cheque. In these circumstancs, and when even after the decree was passed, without prejudice, settlement talks took place and the Defendant forwarded a cheque of Rs. 1,00,000/- and agreed to settle the claim at 5 Rs.20,00,000/-, that this Motion is not bonafide and deserves to be dismissed. 8. I have perused the Motion and the affidavit in reply and rejoinder so also all annexures thereto. I have perused the plaint and the annexures to the same as well. I the light of the principles laid down in Order 37 Rule 4 of C.P.C., special circumstance have to be made out for the Defendant filing the affidavit or seeking leave to defend the Suit. There does not appear to be any serious dispute that the suit summons is received. Vakalatnama is filed and an Advocate is engaged. The Defendant has set out in the affidavit in support that the Advocate engaged took the signature of the Defendant on the Vakalatnama and thereafter failed to inform him anything about the matter. The Advocate could notbe traced even after the flat was attached. In such circumstances, it appears to me that the Defendant cannot be non-suited only on the ground that he was not in regular touch with the Advocate. He was unaware with the procedure that is to be followed. In such circumstances, the Defendant's case that he was unaware that the ex-parte decree is passed till the attachment, 6 as raised in affidavit in support, deserves to be accepted. 9. However, that is not enought, as far as the merits of the claim are concerned, prima-facie, it does appear to me that the Defendant has signed each of the documents. There is no allegation with regard to the signaures being obtained on a blank stamp paper in the reply to the Suit notice. The plea raised in the affidavit in support with regard to the pendency of criminal proceedings is something, which admittely took place after the cheque was signed so also the documents viz. the deed of partnership dated 23rd August 2000 and the deed of dissolution dated 23rd June 2001. The signature on these documents tally with that of the cheque. In reply to the notice all that is stated is that the Plaintiff is trying to cheat the Defendant. This is not a case where the Plaintiff and Defenant are complete strangers as is sought to be alleged. However, the Defendant desires to defend the Suit claim by elaborating the defence in detail. Therefore, interest of justice requires that he should be put some terms. All the more, when some without prejudice talks wherein progress even after the decree was passed in the Suit. 7 10. Taking a overall view of the matter and applying the settled principles, interest of justice will sub-served if leave to defend is granted, the Defendant on deposit of a sum of Rs.5,00,000/- within a period of four weeks from today as a pre-condition to set aside the decree. In case the amount is deposited, the Prothonotary and Senior Master to invest the same in a fixed deposit with a Nationalised Bank. 11. If the amount is deposited and the Plaintiff receives intimation in that behalf, the Suit shall proceed as an ordinary Civil Suit and it being transferred to the list of commercial causes. Written Statement to be filed within a period of 12 weeks from the date of deposit with usual directions for discovery and inspection. 12. Needless to state that in default, the decree stands and thereafter, the Plaintiff can execute the same in accordance with law. 8 (S.C. DHARMADHIKARI,J.)