* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 370 OF 2007 IN SUMMONS FOR JUDGMENT NO. 669 OF 2003 IN SUMMARY SUIT NO. 2171 OF 2004 M/s. Emkay Exports & anr. ......Appellant/ Orig.Defendants. V/S. Madhusudan Shrikrishna ......Respondent/ Orig.Plaintiff. * * * * Mr. J.P. Sen i/by. Thakore Jariwala & Associates, Advocate for the Mr. N.D. Jayant, Advocate for respondent. * * * * CORAM : D.K. DESHMUKH, & SMT. R.P. SONDURBALDOTA, JJ. DATED : 24th JUNE, 2010. P.C. :- 1. The relevant facts are, the respondent filed Summary Suit No. 2171 of 2004 in this court claiming that the plaintiff had supplied goods worth Rs.11,58,892/- to the defendants. The goods were duly received by the defendants. For payment of the price, a cheque in the amount of Rs. * 2 * 11,58,892/- was also issued by the defendants, but, that cheque was dishonoured and therefore a money decree was claimed on the amount of Rs.11,58,892/- with interest. On writ of summons being served, Summons for Judgment was taken out by the plaintiff. The defendants filed its reply. They denied that they had received the goods. So far as the cheque is concerned, it was claimed that the cheque was issued from a cheque-book which was being used in the year 1999 and it related to an Account which was closed on 22nd April, 2002. It was alleged that, probably a blank cheque given in the year 1999, was misused by the plaintiff. The Summons for Judgment was decided by order dated 21st September, 2005. The learned Single Judge granted conditional leave to defend the suit. The condition was that the defendants were to deposit an amount of Rs. 25,00,000/- within a period of 4 weeks. The defendants did not comply with the condition. Therefore, by order dated 30th November, 2005 a decree was passed. The present appeal is directed against both the orders granting conditional leave, as also, the order passing decree. It appears that a dispute was raised whether an appeal challenging the order granting conditional leave and the decree passed as a consequence of non-compliance of the condition, is maintainable. That question was referred to Full Bench. Full Bench has answered that question by its judgment dated 26th June, 2008 and has held that such an appeal is maintainable. 2. We have heard the learned counsel appearing for both the sides. * 3 * 3. We find that though the plaintiff claims that the goods have been received by the defendants, the plaintiff has not been able to produce on record, any document which would conclusively establish that the goods were duly received by the defendants. So far as the cheque is concerned, though it appears that a cheque for the exact amount of the price of the goods was issued, it is a fact that the cheque is of an Account, which even according to the dishonour memo was closed down. The defendants had claimed that, the Account was closed in the year 2002. The plaintiff has not disputed that position. In our opinion, therefore the learned Single Judge in such circumstances, was justified in granting conditional leave to defend to the defendants. However, the defendants did not comply with that condition within the time granted, but, we have been informed that during the pendency of this appeal the amount has actually been deposited in the court by the defendants. In our opinion, therefore it will be in the interest of justice to extend the time granted by order dated 21st September, 2005 till the date, on which the amount was deposited by the defendants in court. In these facts and circumstances, therefore in our opinion, following order would meet the ends of justice. 4. The order dated 21st September, 2005 passed in Summons for Judgment No.669 of 2004 is maintained. However, the order dated 30th November, 2005 passing decree in the suit in favour of the plaintiff is set aside. The defendants have already complied with the condition for grant of leave by depositing the amount of Rs.25 lakhs in this court. The * 4 * Prothonotary & Senior Master, High Court, Mumbai shall permit the plaintiff to withdraw that amount on furnishing bank guarantee of a nationalised bank to the satisfaction of the Prothonotary & Senior Master of this court and on filing an Undertaking to bring back the amount, if so directed by this court and on such terms and conditions, as may be directed by this court. The defendants to file written statement within a period of 8 weeks from today. The withdrawal of the amount shall be permitted within a period of 6 weeks from today. In case the amount is not withdrawn within the aforesaid period, it be invested in the fixed deposit to the credit of the Suit No. 2171 of 2000. Appeal disposed off. [D.K. DESHMUKH, J] [SMT. R.P. SONDURBALDOTA, J]