1 JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 188 OF 2009 IN SUMMARY SUIT NO. 685 OF 2009 M/s. Riya Travel & Tours (I) Pvt. Ltd. ... Plaintiffs. V/s. M/s. Royal Holidays & Ors. ... Defendants. Mr. Basant Tilokani with P. Patel i/b. Jhangiani Narula & Associates for the Plaintiffs. Mr. C.M. Kothari for Defendants 2,3 and 5. CORAM : R.Y. GANOO, J. DATED : 23rd APRIL 2010. P.C. :- The Plaintiffs have instituted the Suit for recovery of monies as set out in the prayer clause (a) on the strength of five dishonoured cheques issued by the Defendants. In the affidavit in reply to the Summons for Judgment, the Defendants have contended that Mr. Santosh Sagar and Mr. Ravi, representatives of the Plaintiffs approached Defendants in their office on 20th November 2008 in the evening at about 6.00 p.m., threatened them and thereafter managed to 2 compel Defendants to issue the said cheques and that is how the said cheques went in the hands of the Plaintiffs and that the cheques do not bind the Defendants. According to the Defendants, the Plaintiffs have not placed before the Court various invoices on the strength of which the Plaintiffs claim that they were entitled to recover monies from the Defendants. 2. According to the Plaintiffs, the cheques came to be issued in favour of the Plaintiffs and as the same got dishonoured, the Plaintiffs have filed this Suit for recovery of monies. 3. The learned Advocate for the Defendants contended that as a result of threats administered by the Plaintiffs’ representatives, the Defendants were compelled to deliver the cheques and that subsequent to the delivery of cheques, stop payment orders were issued by letter dated 21st November 2008 as well as the Senior Inspector of Police, L.T. Marg Police Station was informed as to what transpired on 20th November 2008 under Advocate’s letter dated 21st November 2008. The learned Advocate for the Defendants took me through the 3 affidavit in reply and tried to contend that before the Police the Plaintiffs had promised to return the cheques. However, the said promise was not fulfilled. According to learned Advocate for the Defendants, Defendants have explained the circumstances under which the Suit cheques went into the hands of the Plaintiffs and looking to the preponderance of probabilities, the stand of the Defendantss that the Defendants were compelled to deliver the cheque is made out. 4. The learned Advocate Mr. Kothari, appearing on behalf of the Defendants had in support of his submission relied upon the Judgment in the case of M.S. Narayana Menon @ Mani V/s. State of Kerala reported in (2006) SC Cr.L.J. 4607. Learned Advocate for Defendants had submitted that the Defendants be granted unconditional leave to defend the Suit. 5. I have heard learned Advocates on both sides. The Defendants in their affidavit in reply have not contended that the Defendants had no commercial relations with the Plaintiffs. The Plaintiffs are travel agents and they sell tickets. The Plaintiffs claim that the Defendants had purchased the 4 tickets from the Plaintiffs for which the bills were issued and liability arose. It is true that the bills have not been relied upon and particulars of the same are not given in detail in the plaint. It is noticed that the suit is essentially filed on the dishonoured cheques and therefore, one may not give importance to the non-production of invoices before the Court. The cheques are issued by the Defendants. The only question is whether the cheques have been issued voluntarily or under the circumstances stated by the Defendants viz. the Defendants were compelled to issue the cheques. 6. It is seen that the complaint came to be lodged with L.T. Marg Police Station at the hands of Mr. Dilip Romani, who is Defendant No.2. The complaint is filed with L.T. Marg Police Station on 21st November 2008 at about 8.10 p.m. that is after about 24 hours from the time of the alleged incident is alleged to have taken place on 20th November 2008 at 6.00 p.m. The Defendants have consulted an Advocate and said Advocate, by his letter dated 21st November 2008 sent a letter to the Senior Inspector of Police. In my view, in a matter like this, one will have to read the text of the complaint filed with the 5 Police for the purposes of testing the case of the Defendants as regards the circumstances under which the said cheques went into the hands of the Plaintiffs. The second paragraph of the said complaint shows that the representatives of the Plaintiffs viz. Mr. Santosh Sagar and Mr. Ravi approached the Defendants at the office of Defendants on 20th November 2008 at about 6.00 p.m. and demanded monies towards unpaid bills and that is how the Defendants delivered five cheques. It is admitted by the Defendants in the complaint itself that dates remained to be filled in. It is mentioned in the last line that said representatives threatened Defendant No.2 that if the cheques are bounced, he will be taken care of and that they used abusive language and left. Perusal of the complaint dated 21.11.2008 goes to show that it is not the case of the Defendants that the cheques were obtained under threat. The threat has been given as regards what is to happen if the cheques are dishonoured. Defendant No.2 was careful in stating in the complaint that the date remained to be filled in. In my view, it will not be open for the Court to add anything to the text of the complaint which came to be filed and the Court in order to test the defence of the Defendants 6 will have to read the complaint as it is. On reading the said complaint as it is, the stand of the Defendants that the Defendants were compelled to deliver the cheques after scribing them cannot be accepted. It is to be noted that the body of the cheque is scribed by Defendant No.2 and the cheques are duly signed by Defendant No.2. This factor is against the Defendants while testing the case of the Defendants. If the Plaintiffs’ representatives had threatened the Defendants to issue the cheques under threat, certainly they would have called upon Defendant No.2 to see that Defendant No.2 is made to fill the date as has been done with reference to the other part of the cheque. The fact that Defendant No.2 did not fill in the date on the cheques is something which raises a serious doubt about the entire story. It is to be noted that the incident is alleged to have taken place on 20th November 2008 at 6.00 p.m. and the complaint is filed on 21st November 2008 at 8.10 p.m. that is after about 24 hours. No explanation has been given as to why Defendant No.2 took 24 hours to approach the Police Station. If Defendant No.2 was compelled to issue the cheques as is said in the affidavit in reply, surely he should have reached to 7 the Police Station immediately lodge the complaint so that the Police would have to take some action in the matter. It is also to be noted that the Police have treated the incident as a non- cognizable offence and no further steps are taken by the Police. It is to be noted that if it was the case of the Defendants that Defendant No.2 was compelled to scribe the cheques and deliver the same to the representatives, it would have amounted a cognizable offence. Neither Defendant No. 2 nor the firm has lodged the complaint to the Commissioner of Police informing the Commissioner of Police that the text of the complaint dated 21st November 2008 was not as per the narration of Defendant No.2. Neither Defendant No.2 or nor anybody on behalf of Defendant No.1 has filed a complaint in the Court about the incident. All these factors go against the the Defendants. 7. It is pertinent to note that when the cheques came to be deposited in the bank, they came to be dishonoured on 22nd November 2008 as per dishonour memo “for funds insufficient”. This would mean that the cheques must have been deposited in the bank on 21st November 2008 being the date appearing in the cheque. It is to be noted that the 8 cheques came to be deposited again and the same came to be dishonoured as instructions for stop payment were issued. One may not give any importance to these developments as the Court was required to test the case of the Defendants. 8. Keeping in view the above discussion and considering the pre-ponderance of probabilities, I hold that the Defendants have failed to show that Defendant No.2 was compelled to deliver to the Plaintiffs’ representative the said cheques. The Plaintiffs deposited the said cheques and the said cheques are dishonoured. On account the dishonour of said cheques, the Plaintiffs are entitled to recover monies from the Defendants. 9. In view of the aforesaid discussion, the Defendants have failed to make out a case to secure unconditional leave to defend the Suit. The Defendants will have to put to terms to defend the Suit by directing them to deposit monies in the Court. Looking to the fact that the amount covered by five dishonoured cheques is Rs.9,03,000/-, I am inclined to direct the Defendants to deposit in this Court a sum of Rs.7,00,000/- for defending the suit. Hence, following order is passed to 9 dispose of the Summons for Judgment :- (i) On the Defendants or anyone of them depositing in this Court a sum of Rs.7,00,000/- on or before 17th June 2010, the Defendants are granted leave to defend the Suit. (ii) The Defendants to file written statement directly in the Court on 15th June 2010. The Suit to appear on Board on 21st June 2010 for receiving Written Statement. (iii) Summons for Judgment is disposed of in the above terms with no order as to costs. (R.Y. GANOO, J.)