1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Summons for Judgment No.115 of 2008 IN Summary Suit No.194 of 2008 IonBond Coatings India Pvt. Ltd. .. Plaintiff v/s. Multi-Arc India Ltd. .. .. Defendant Mr.H. Toor i/by M/s.C.R. Bayley & Co. for Plff. Mr.Sanjay Chaturvedi i/by M/s.M Ranchoddas & Co. for Deft. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 6 th April 2009 P.C. : 1. This Suit is filed upon the loan Agreement dated 25.10.2005 signed by the parties in respect of the loan taken by the Defendant from the Plaintiff. The loan came to be taken in view of certain winding up Petitions to the extent of Rs.1.36 Crores filed against the Defendant. The Defendant was to pay off the Plaintiff in those Petitions if the winding up Petitions were withdrawn. The loan has been given in a sum of Rs.1.43 Crores under the agreement. The amount was to be repaid in installments along with interest at 12% per annum as mentioned in a Schedule called “Amortization Schedule”. If the amounts were not repaid as per the Schedule, an additional interest of 3% was to be levied upon 2 such default under Clause 7.1(b) of the agreement. The Defendant also executed demand Promissory Note as shown in Schedule- C to the Agreement, which is annexed as Exhibit- B to the Plaint. The Promissory Note has been executed on 26.10.2005, a date after the execution of the Agreement. 2. Part payments have been made from time to time. Confirmation of the amount of principal as well as the interest payable by the Defendant has been sent by the Defendant signed by its authorised signatory. The confirmation shows the balance of the principal amount payable less the payment of interest made adding the net interest payable to arrive at the total figure of the principal and interest payable as on 31.12.2006 as mentioned in the confirmation note of the Defendant. 3. The legal notice sent on 29.11.2007 showing the amount payable, including the penalty interest of 3% making the interest payable to 15% has been replied. 4. It is the reply of the Defendant in this Summons for Judgment that under a separate business transfer Agreement dated 22.8.2005 “substantial amounts” without particulars, are recoverable by the Defendant from the 3 Plaintiff. No claim in respect thereof has been made since the date of the reply on 17.12.2007. No Suit has been filed thereafter. It is argued that the separate business transfer Agreement dated 22.8.2005, which has been referred to in the first recital of the suit agreement alone, is a sister document under which the amounts payable are claimed to be adjusted. The written agreement between the parities upon which this Suit is filed does not mention about any adjustment to be made under any other document or transaction. Another agreement may have been entered upon between the parties, but it is a separate distinct agreement. 5. Under the written contract between the parties, Exhibit- A to the Plaint, liquidated amount of the principal as well as interest and penalty interest are laid down. Those amounts have been confirmed. The amounts are not paid. 6. It is argued that under the business transfer Agreement dated 22.8.2005 the parties have referred their dispute to arbitration. That agreement is not produced or relied upon. What is payable under that agreement or what is the dispute between the parties under the agreement is also not stated. Hence the defence in that regard cannot even be decided. 4 7. No substantial defence to the Plaintiff's claim under the written contract in this Suit is seen. The total amount claimed by the Plaintiff in the Suit is 71,38,499.88 with interest calculated from the date of the notice until realization at the rate of 15% per annum. 8. Upon the Defendant depositing in this Court a sum of Rs.71 Lakhs within 8 weeks, the Defendant shall have leave to defend the Suit. If the amount is deposited, the Defendant shall file its Written Statement within 30 days from the date of the deposit. (SMT.ROSHAN DALVI, J.)