: 1 : SJ-43-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.43 OF 2008 IN SUMMARY SUIT NO.3310 OF 2007 Amit Nagindas Vora .. Plaintiff v/s. Vishal Patel .. Defendant ......... Mr. S.U. Kamdar, Sr. Counsel with Ms Patil i/by S.R. Saudagar for the plaintiff Mr. N. Engineer i/by Ashok Purohit & Co. for defendant ......... CORAM : R.Y.GANOO, J. DATE : 1st SEPTEMBER,2010. P.C. : 1. The present suit is filed for recovery of Rs.67,95,000/- and for interest on account of dishonour of cheque for a sum of Rs.76,95,000/- issued by the defendant in favour of the plaintiff. As the suit is filed on the basis of the dishonoured cheque, consideration as having been flown from the plaintiff in favour of defendant will have to be presumed and it was for the defendant to give an acceptable explanation as to why the cheque got dishonoured. : 2 : SJ-43-08=.sxw 2. It is admitted by the defendant that two cheques totaling to Rs. 76,95,000/- were issued by defendant in favour of a company with whom defendant had an agreement of which plaintiff is a partner. It is a common ground that the said cheque was dishonoured and a criminal complaint was filed for the said cheque. It is also common ground that on account of receipt of amounts by pay order dated 27th June, 2006 and 18th August, 2006 respectively, the plaintiff received Rs. 76,95,000/-. The impugned cheque is dated 8th May, 2006. 3. With these aforesaid admitted facts, learned Counsel for the defendant contended that impugned cheque was handed over to the advocate for plaintiff by way of security and it was not to be encashed and as such defendant is entitled to unconditional leave. 4. It is required to be noted that there is no correspondence to support the stand of the defendant that the impugned cheque was given by way of security. Even otherwise, after the defendant delivered two pay orders so as to complete the payment of the amount equivalent to the cheques, which were dishonoured i.e. Rs.76,95,000/-, the defendant has not demanded the impugned cheque dated 8th May, 2006 either from the plaintiff or from his advocate with whom such : 3 : SJ-43-08=.sxw cheque was said to be lying as escrow. Affidavit of the said advocate is not produced in the defence. If this is so, defence put up by the defendant cannot be accepted. In the normal course, the Court would have been justified in making summons for judgment absolute. However, to enable the defendant to proove the aforesaid defence, I am inclined to grant him leave to defend by putting him to terms that defendant should deposit a sum of Rs.76,95,000/- in this Court. Some time will have to be given to the defendant to comply with this order. Hence, Summons for Judgment is dismissed by passing following order. ORDER (i) Upon defendant depositing in this Court a sum of Rs.76,95,000/- on or before 30th October, 2001, defendant is granted leave to defend. (ii) Defendant to file written statement directly in the office on or before 19th November, 2010. (iii) Defendant to produce while filing written statement, receipt for having deposited aforesaid amount of Rs.76,95,000/-. There shall be no order as to costs. (R.Y.GANOO, J.)