IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.180 OF 2008 IN SUMMARY SUIT NO.961 OF 2008 Mr. Ramchandra Jotirao Mangurdekar ..Plaintiff V/s Mr. Shridhar Chandaya Shetty ..Defendant Shri A.G. Pandit for the Plaintiff. Shri Firdosh Puniwala a/w Mr. Y.R. Shah for the Defendant. CORAM ; A.A.SAYED, J. DATE : 8TH MAY, 2009 P.C.: 1. The above Summons for Judgment is filed by the Plaintiff to enter a judgment in his favour against the Defendant for an amount of Rs. 42,66,000/- as set out in the particulars of claim and for further interest on the principal amount of Rs. 38,000/- from the filing of the suit till payment or realization. 2. The claim of the plaintiff is based on a Deed of Cancellation dated 20th July, 2006 between the plaintiff and the defendant whereby the defendant has agreed to pay Rs.45 Lacs to the plaintiff. The Deed of Cancellation was entered into after the terms and conditions in Memorandum of Understanding-cum-Development Agreement dated 5th July, 2002 between the parties in respect of the development of the plot bearing Survey No. 42 Hissa NO. 28, CTS No. 287 of village Borivali, could not be fulfilled. By the Memorandum of Understanding , it was agreed that the plot in question will be developed by the plaintiff and the consideration amount of Rs. 21.5 lacs was to be paid by the Plaintiff to defendant. Certain payments were made by the plaintiff to the defendant in pursuance of the said Memorandum of Understanding. However, there were some problems as far as development on the said plot was concerned, inter alia, as the said plot was to be acquired under U.L.C. Act and therefore, disputes arose between the parties. The dispute was settled by the parties by entering into the Deed of Cancellation dated 20th July,2006 under which a sum of Rs. 45 lacs was agreed to be paid by the defendant to the plaintiff in the manner set out in the Deed of Cancellation. The Deed of Cancellation further provides that in case of default in the payment of the 10 instalments, the defendant was to pay simple interest at the rate of 12% p.a. from due date till payment. The defendant paid sum of Rs. 7,00,000/- to the Plaintiff under the said Deed of Cancellation. Since the Defendant failed and neglected to pay the balance amount of Rs.38,00,000/-, the present suit and Summons for Judgment came to be filed by the Plaintiff. 3 The learned Counsel for the plaintiff submitted that the Deed of Cancellation is an admitted document and the defendant, after part payment of Rs. 7 lacs, has committed default in payment of the balance amounts as per the terms of Deed of Cancellation. The learned Counsel submitted that the defendant has no defence and that the application for leave to defend is filed merely to delay the passing of the decree. He, therefore, urged the Summons for Judgment may be made absolute and the suit be decreed. 4. The learned Counsel for the defendant adverting to the affidavit- in reply filed by the defendant, submitted that there are triable issues involved and the defendant should be granted unconditional leave to defend the suit. The learned Counsel for the defendant submitted that the suit is not maintainable as Summary Suit. It is stated that the Deed of Cancellation is unenforceable and the same is executed without any consideration. In the affidavit-in-reply of the defendant references have been made to the MOU and to the controversy which arose after the MOU was signed between the parties. The learned Counsel for the defendant admitted that a sum of Rs.10 Lacs had been paid by the Plaintiff to the Defendant under the MOU out of which Rs.7 Lacs has been repaid by the Defendant to the Plaintiff and in respect of balance of Rs. 3 lacs, the Defendant is ready and willing to pay the said amount with interest @18% p.a. as per Clause 12 of the Memorandum of Understanding. It may be stated here that according to the learned Counsel for the Plaintiff, the Plaintiff had paid a sum of Rs.18 lacs to the Defendant under the MOU, however, according to him, the MOU cannot now be looked into since the parties had entered into the Deed of Cancellation under which the defendant has agreed to pay a sum of Rs. 45 lacs out of which only Rs. 7 lacs were paid by the defendant to the plaintiff. The learned Counsel for the Defendant further submitted that the Deed of Cancellation has not been duly stamped as per provisions of Bombay Stamp Act 1958 and therefore, the same will not be admissible in evidence. He submitted that the Deed of Cancellation is nothing but a Release Deed. However, he fairly conceded to the contention in respect of the stamp duty has not been taken in the reply. 5 I have heard the learned Counsel for the parties and perused the material on record. There is no dispute about the execution of the Deed of Cancellation under which the defendant had agreed to pay to the plaintiff a sum of Rs. 45 lacs. The defence which is taken by the defendant in respect of the Deed of Cancellation is that the same is unenforceable and was not meant to be acted upon. It also cannot be disputed that a sum of Rs. 7 lacs has been paid by the defendant to the plaintiff, out of which Rs. 5 lacs payment was confirmed in the receipt clause of the Deed of Cancellation and a sum of Rs. 2 lacs was paid thereafter vide receipt dated 26-08-2006 and therefore, as per the Deed of Cancellation Rs. 38 lacs has been remained to be paid by the defendants to the plaintiff. 6. In the circumstances, in my view no substantial defence is made out by the defendant. At the same time, considering the facts and circumstances of the case, I am not inclined to debar the defendant from contesting the suit. 7 Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice. (i) Subject to deposit of 19 lacs i. e. 50% of Rs. 38 lacs by the defendant in this Court, within 12 weeks, the defendant is granted leave to defend the suit. (ii) Upon deposit, the plaintiff would be entitled to withdraw a sum of Rs. 10 lacs as follows:- Rs. 6.5 lacs by giving security to the satisfaction of the Prothonotary and Senior Master; 3.5 lacs without giving any security. (iii)The balance amount be invested by the Prothonotary and Senior Master in a Term Deposit of a Nationalised Bank. 8 Upon Deposit, the suit be transferred to the list of commercial causes. The defendant to file Written Statement within 6 weeks of the deposit. Affidavit of Documents to be filed within 8 weeks, thereafter. Discovery and Inspection within 8 weeks thereafter. 9 Summons for Judgment to stand disposed of accordingly. (A.A. Sayed, J. )