( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.385 OF 2007 SUMMONS FOR JUDGMENT NO.385 OF 2007 SUMMONS FOR JUDGMENT NO.385 OF 2007 IN IN IN SUMMARY SUIT NO.3215 OF 2005 SUMMARY SUIT NO.3215 OF 2005 SUMMARY SUIT NO.3215 OF 2005 Dharmesh Madhukar Momaya ...Plaintiff V/s. Lovely Wear & Ors. ...Defendants Mr.U.L. Shah for the Plaintiff. Mr.Q.M. Ashfaq for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 24th November, 2008. DATED : 24th November, 2008. DATED : 24th November, 2008. P.C.: P.C.: P.C.: . This suit is filed for recovery of monies based on the transaction which is reflected in terms of document dated 9th July, 2002. The defendants have filed affidavit-in-reply to the Summons for Judgment and according to them they have returned the amount covered by the suit document and as such nothing is due and payable. It is also the stand of the defendants that the record pertaining to the defendants is lost in fire. 2. If it has been the defence of the defendants that they have repaid the entire amount it shows that the defendants have admitted the transactions set out ( 2 ) in the plaint. If defendants had returned the said amount it was necessary for the defendants to mention in their affidavit-in-reply the particulars as to when the monies were paid and in the normal course the defendants could have produced some documents in the nature of acknowledgement issued by the plaintiff to show that the defendants had paid the amounts to the plaintiff. Learned Counsel for the plaintiff in the course of arguments produced the original of the suit document. In the normal course if the monies would have been repaid by the defendants, there ought to have been endorsement on the original document as regards such repayment or the said document would have gone in the custody of the defendants. A mere averment that the defendants have lost the documents in fire is not sufficient. 3. In my view, the stand taken by the defendants does not entitle them to claim unconditional leave. In my view, defendants can be put to terms and they can be directed to deposit a sum of Rs.50,000/- in the Court to enable them to defend the suit. Hence the order :- O R D E R O R D E R O R D E R i) Upon the defendants depositing a sum ( 3 ) of Rs.50,000/- in this Court on or before 7th January, 2009, the defendants are permitted to file written statement. ii) If defendants deposit the sum of Rs.50,000/- as aforesaid, Prothonotary & Senior Master to invest the said amount in a nationalized bank initially for a period of one year and thereafter renew the same for like period from time to time till further orders from the Court. 4. Suit set down for filing written statement on 12th January, 2009. Summons for Judgment No.385 of 2007 stands disposed of in above terms with no order as to costs. 5. Office to search the papers concerning the Suit and keep it on the file before the next date, without fail. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)