: 1 : SJ-86-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.86 OF 2008 IN SUIT NO. 388 OF 2008 Rajendra Nemichand Kothari .. Plaintiff v/s. Surendra Bohra Proprietor of Roopvati Pictures .. Defendant ......... Ms. S.R. Kumbhat for the plaintiff Mr. P.R. Jaiswal i/by Ashok Purohit for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 24th AUGUST, 2010. P.C. : 1. The plaintiff had advanced monies to the defendant under Agreement dated 7th April, 2001. Thereafter, defendant issued in all 20 cheques. All those cheques got dishonoured. Complaint under Section 138 of the Negotiable Instrument Act came to be filed. Before the learned Metropolitan Magistrate a document was executed by and between the plaintiff and the defendant so as to see that criminal complaint is settled upon payment of monies as set out in the document dated 7th October, 2006 : 2 : SJ-86-08=.sxw (hereinafter referred to as said agreement). By said agreement, defendant has conceded that he shall pay a sum of Rs.31 lakhs and the complaint shall come to an end. Said agreement also indicates that an undertaking was given by the plaintiff that upon receipt of Rs.31 lakhs, he would withdraw the cases. The Court is informed that defendant has not paid the amount of Rs. 31 lakhs as set out in the said agreement. Hence, plaintiff has filed this suit for recovery of Rs.31 lakhs and the interest thereon. 2. In the course of arguments, it was made known to the Court that a sum of Rs.13 lakhs have been paid by the defendant after execution of this agreement. Defendant must get credit for the same. Hence, plaintiff could claim a sum of Rs.18 lakhs. The suit is on the strength of the document wherein there has been an agreement by and between the parties to pay a particular figure. The said agreement dated 7th October, 2006 brought into existence new terms by which rights of the plaintiff and defendant will get governed. By said agreement the defendant has admitted that he is liable to pay plaintiff Rs.31 lakhs. : 3 : SJ-86-08=.sxw 3. Learned Counsel for the defendant had attempted to argue that the said agreement is a bond as understood in Section 2(ccc) of the Bombay Stamp Act. After having perused the definition of the said term “bond” and applying the same to said agreement, I am not inclined to accept the said submission. The document is plain and simple an agreement by which the parties have agreed to bring an end of the criminal trial and if the defendant would have paid the amount, naturally, the rights of the plaintiff to institute civil suit would also have come to an end. 4. Learned Counsel for the defendant contended that as Rs.31 lakhs was not paid, the plaintiff has continued with the criminal trial and, therefore, it is not possible for the plaintiff to go ahead with the suit, This argument cannot be accepted on account of non-payment of sum of Rs.31 lakhs. As per the said agreement plaintiff could go ahead with the criminal trial. Non-payment of sum of Rs.31 lakhs as per the said agreement provided to the plaintiff a cause of action for institution of the present suit. 5. Learned Counsel for defendant drew my attention to the averment in the plaint whereby plaintiff has stated that the said : 4 : SJ-86-08=.sxw agreement is an acknowledgement of liability. The nomenclature given to the said agreement will not decide nature of transaction. One will have to read the terms of the said agreement and determine the nature of the transaction. As indicated earlier, defendant did agree to make the payment as set out in the said agreement and consequences of non-payment of the said amount are set out in the said agreement. 6. Keeping in view the aforesaid discussion, it is clear that the institution of the suit for recovery of Rs.31 lakhs was proper. Since defendant has paid Rs. 13 lakhs, the liability of the defendant turns out to be Rs.18 lakhs. In my view, this is a case where defendant should be called upon to deposit in this Court a sum of Rs.10 lakhs for the purposes of defending the suit. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Upon depositing a sum of Rs.10 lakhs in this Court on or before 15th October, 2010, defendant is granted leave to defend the suit. : 5 : SJ-86-08=.sxw (ii) Defendant to file written statement directly in the office on or before 26th October, 2010. If the amount of Rs.10 lakhs is deposited, office shall invest the said amount in a nationalized bank initially for a period of 1 year and continue to renew the same for the like period till further orders. (iii) Original document dated 7th October, 2006 is returned to learned Counsel for the plaintiff. (iv)Summons for Judgment is disposed of in the above terms with no order as to costs. (R.Y.GANOO, J.)